text:
    ANN E. SMITH, Appellant, v. JOHN T. CORNELL, as Executor, &c., Respondent.

      Order on demurrer not appealable.—Bond, general rule that persons not parties to a sealed instrument are not liable thereon, applicable thereto.

    An order sustaining or overruling a demurrer is not appealable. An interlocutory judgment must be entered.

      Semble, a bond is one of those instruments to which the general rule that only the party named in and who executes a sealed instrument can be held liable thereon, applies.
    As a bond is required to be under seal, which is an essential characteristic, the fact that the obligor might have, by an instrument not under seal, made a valid contract to pay the sum mentioned in its condition, does not bring it within the exception to the general rule, which exception covers only those sealed instruments which are not required to be under seal to give them the force and operation which their motive and character call for. Per Ingraham, J.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided May 3, 1886.
    Appeal, as stated in the notice of appeal, from an order or interlocutory judgment entered at special term, sustaining the demurrer of the defendant to the plaintiff’s complaint.
    The facts sufficiently appear in the opinion.

      Stilwell & Swayne, attorneys, and Benjamin M. Stilwell, of counsel for appellant,
    argued :—I. The assignment of the bond and mortgage by Charles Lanier to the plaintiff, carried with it, and transferred to her, the right to the money advanced, and to secure which the bond and mortgage were given, and all claims against any person as collateral and incidental to it (Bolen v. Crosby, 49 N. Y. 187 ; Campbell v. Birch, 60 Ib. 218 ; Gerwig v. Setterly, 56 Ib. 214).
    II. The bond and mortgage given to secure the loan were one instrument, and were in fact obligations of Gershom B. Smith, because he owned the property upon which the mortgage was given, and because he borrowed and received the money, and merely used the name of one of his clerks in the transaction, in order to defraud his wife of her dower, or the party loaning the money. These facts, if proved, are sufficient to maintain an action on the case against the defendant, to recover the money obtained by a fraudulent device ; and the proceeds of the fraud having come to the hands of the defendant as the executor of this fraudulent borrower, he ought in justice to pay the same.
    III. There was no necessity for any seal to give validity to the transaction. A note would have been equally as valid and effectual as a bond. Upon the above facts, Smith, as the principal, may be made liable in assumpsit, upon the promise contained in the instrument, which may be resorted to, to ascertain the terms of the agreement, under the case of Briggs v. Partridge, (64 N. Y. 357, and cases Cited on page 364).

      A. J. McCullough, attorney, and Horace Secor, of counsel for respondent,
    argued: The action is clearly brought to hold the estate of Smith liable on the bond executed by Gwyer, who was really acting on behalf of Smith, his undisclosed principal. It is true that where a parol contract is made by a person (whether oral or written), and that person is really acting on behalf of an undisclosed principal, the other party may hold such undisclosed principal liable upon the contract. But this rule does not apply to sealed instruments (Briggs v. Partridge, 7 J. & S. 339, affi’d 64 N. Y. 357 ; Kiersted v. O. & A R. R. Co., 69 Ib. 343 ; Williams v. Gillies, 15 Ib. 197; Tuthill v. Wilson, 90 Ib. 493).
   By the Court.

Ingraham, J.

From the record as printed it does not appear that any interlocutory judgment was entered on the order of the special term sustaining the demurrer. All that appears is an order of the special term, entered January 4, 1886, sustaining the demurrer, and the appeal is from the order or interlocutory judgment entered herein. No interlocutory judgment is printed, and it does not appear that any was ever entered. It has been settled by repeated decisions that no appeal lies from an order sustaining or overruling a demurrer (Lovatt v. Watson, 52 Super. Ct. 544, and cases there cited). The record before us presents nothing for review, and for that reason the appeal must be dismissed with costs.

I am of the opinion that the order of the special tern), sustaining the demurrer was clearly right. The action is to recover a balance due on a bond and mortgage executed by one Gwyer to Charles Lanier, and assigned by Challes Lanier to the plaintiff. The bond was under seal. It is not alleged that any cause of action was assigned to the plaintiff, except the bond and mortgage given to secure the obligation of the bond. Neither the bond nor the mortgage was executed by the defendant’s testator, and he was not hable on the face of the instrument. The seal forbids any inquiry as to whether the obligor, in executing the bond, acted as agent for the defendant’s- testator (Simpson v. N. Y., &c. R. R. Co., 51 Super. Ct. 419, and cases there cited). The bond and mortgage being under seal, he cannot be held liable as an undisclosed principal. It cannot be said that the case comes within the exception stated in Simpson v. N. Y., &c. R. R. Co. (supra), that where the contract is one which is valid without a seal, and the seal is therefore of no account, an undisclosed principal can be held liable; because the bond itself is an instrument under seal, and, although a contract to pay money would be valid without a seal, still it would not be a bond, and in order to make a valid bond, a seal is necessary (Supervisors of Livingston v. White, 30 Barb. 78). For the reasons first stated, however, the appeal must be dismissed, with costs.

Sedgwick, Oh. J., concurred.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    MARY EMMA WYCKOFF v. SETH W. SCOFIELD, ET AL. In re Petition of WILLIAM S. MADDOCK. WILLIAM S. MADDOCK, Appellant, D. J. NOYES, Receiver, the Plaintiff in the Action, and SMITH and SCOFIELD, Defendants therein, Respondents.

      Receiver in mortgage cases—As to liability of, as owner— Unsafe walls — Fire Department—Consolidation Act qf 1882.
    A receiver of rents and profits appointed in a foreclosure action is not vested with the legal title of the premises, and is not the owner thereof—• A liability therefore which is cast by statute on the owner of a building, by reason of such ownership solely, does not rest upon him.
    The petitioner under an authority of the Fire Department claimed to have been given under section 478 of the Consolidation Act of 1882, entered upon the mortgaged premises, and did work and furnished materials, which it was claimed were necessary to render safe the walls of the building. He then applied to the court to be paid the amount of his expenditures out of rents and profits in the receiver’s hands. Held, that his only remedy was that given by the act, viz.: An action against the owner of the building, who in this case was the mortgagor; and that the fund in court being for the benefit of the mortgagee could not be appropriated to meet a liability or pay a debt of the mortgagor. But if it appeared that there would be a surplus of rents after paying the mortgage, a different question would arise.
    Before Sedgwick, Ch. J. and Ingraham, J.

      Decided May 3, 1886.

      Appeal from order denying motion to direct the receiver of rents and profits appointed, in the above entitled action (which is an action to foreclose a. mortgage on certain real estate), to pay the claim of the petitioner for the amount expended by him in shoring up a wall of the house on the mortgaged premises.
    The facts sufficiently appear in the opinion.

      Lemuel Skidmore, attorney and of counsel for petitioner, appellant,
    on the questions involved in the general term opinion, argued :—I. Upon general principles of equity the receiver is the hand of the court and his possession is the possession of the court (High Receivers, art. 134, p. 89 ; Foster v. Townsend, 68 N. Y. 206; Carey v. Long, 43 How. 498).
    II. Had the receiver applied to the court for permission to take the necessary measures to support the wall the court would have ordered him to do so, or had the receiver done the work and paid for it, the. court would have sanctioned such payment. The receiver does not represent the interest of the plaintiff mortgagee alone, but of all the parties to the action (High Receivers, art. 650, p. 424 ; art. 180, p. 122 : Green v. Bostwick, 1 Sandf. Ch. 186).
    III. The court, having taken possession of the property for the benefit of all parties concerned, is bound in good conscience to provide against its destruction, and this obligation would extend to compensation of the adjoining owner for moneys necessarily laid out upon it in a case of pressing emergency where there was no time to apply to the court for directions (Hoover v. Montclair R. R., 29 N. J. Eq. 4 ; Jerome v. McCarter, 4 Otto [U. S.] 738).
    IV. The petitioner’s right to compensation is established by Laws of 1882, chap. 410, § 473 (N. Y. Consolidation Act). It is clearly'within- the intention and spirit of the statute that the person having the control and usufruct of a building should be required, in the interest of public safety, to support its foundations so as to prevent its tumbling into an adjacent excavation. The word “owner” in this section is a general word, and should be construed liberally in the interest of public safety. It has been held in similar statutes to embrace a tenant occupying premises (Woodward v. Billericay Highway Board, 11 L. R. Ch. Div. 214).
    Y. It is clear that Scofield, the technical owner of the equity of redemption, was bound by the statute, and is hable to reimburse the petitioner. Such owner, therefore, being liable, the receiver, as representing his interest, should be ordered to satisfy this liability out of the rents and profits of the building, just as he would be ordered to pay taxes in order to prevent a sale or forfeiture (In re Blanc, 14 Hun, 8).
    YI. The practice of allowing a receiver of rents and profits of mortgaged premises, upon application of the mortgagee in an action to foreclose the mortgage, is not founded upon statute, but upon general principles of equity (Astor v. Turner, 11 Paige, 436). In law, the rents and profits belong to the mortgagor until a sale of the premises. A practice founded in equity should be governed by equitable principles and modified to meet the justice of the case. It would be grossly inequitable to allow the mortgagee to appropriate the money actually expended on the premises to preserve them from destruction, and to leave the liability upon the owner of the equity of redemption (not being the mortgagee) to repay this money under the statute, when he had no control of and no real interest in the premises at the time the expenditure was made by petitioner.

      Samuel J. Noyes, attorney, and of counsel for receiver, respondent,
    on the questions involved in the opinion of the general term, among other things argued: —Section 473 of chapter 410 of Laws of 1882, gives to a person doing the work, “under and by direction of” the fire department, the right to bring an action against the owner for the cost of the work done “ in the same manner as if he had been employed to do the said work by the owner,” &c., and it gives no specific lien on the premises. If the owner had employed this petitioner to do the work, he would have had the right to bring an action to enforce the ordinary lien of a mechanic, and nothing further. He might have sued the owner in a simple action of assumpsit, or he might have filed a mechanic’s lien. But if he has the right to the ordinary mechanic’s lien, his right is subordinate to all prior liens and incumbrances. His rights are subordinate to the lien of the plaintiff’s mortgage; and the funds in the hands of the receiver are there only for the benefit and protection of the mortgage. The utmost stretch of the equity powers of the court in such a case would possibly extend to the right to apply, in a proper case, for a portion of the surplus moneys. But we regard the rights of the petitioner as of a strictly legal character, and not equitable. He has chosen to pursue his supposed legal remedy. The petitioner has, therefore, mistaken his remedy.
   By the Court.

Ingraham, J.

Irrespective of the statute, it is very clear that the petitioner would have no claim as against either the receiver or the owner of the mortgaged premises, to recover the amount paid for shoring up the wall of the house on the said premises. Petitioner was not bound to protect the buildings adjoining the land on which he was building, and, as long as he has committed no trespass upon the adjoining property, he was not liable for any injury caused thereto. If the owner or those interested in the building preferred to let it fall rather than to take the necessary steps to protect it, the petitioner could not compel them to do anything to their own property by doing it himself and then suing to recover what he had expended.' If he, under such circumstances, did any work on the property of others, he was a mere volunteer, and in the absence of an express or implied contract, the owner of the property on which the work was done would not be liable to pay for such work.

The petitioner, however, claims that he is entitled to be paid for the expenses incurred by him in protecting the building adjoining the property on which he was building, by virtue of section 413 of the statute known as the Consolidation Act of 1882. That section provides that if the person or persons whose duty it shall be, under existing laws, to preserve or protect the wall of a building from injury, shall neglect or fail so to do after notice from the fire department, the department may enter upon the premises and take such steps as in its judgment may be necessary to make the same secure and safe at the expense of the persons owning the building, and any person doing said work or any part thereof under and by direction of the said department may bring and maintain an action against the owner or owners of said wall or building for any work done upon, or material furnished, in the same manner as if he had been employed to do the work by the said owner or owners of said premises.

From the evidence taken before the referee, it would appear that the parties proceeded under this section. A notice was given to do the work by posting it on the buildings and serving it on the receiver on July 28, 1884, and on August 2, 1884, the agent of the petitioner was authorized, under the provisions of this section, to do the work necessary to make the walls described in the notice safe and secure, and prevent the same from becoming unsafe or dangerous, and under that authority the petitioner did the work and furnished the materials, to recover for which this proceeding is brought.

It is very clear, however, that this section would not authorize this proceeding. The statute creates the liability, and the remedy must be confined to that given by the statute, that is, an action against the owner. The receiver is not the owner ; he is simply an officer of the court to collect the rents and profits of the mortgaged premises, for the protection of the mortgagee, in case the property should be found insufficient to pay the amount due on the mortgage, and until the decree of foreclosure and sale under it, the legal title is still in the mortgagor and he is still the owner.- The mortgagee is not the owner, and it does not appear that he will purchase the property at the sale, under the decree, or that he will ever become the owner of the property.

It cannot be said, therefore, that because the owner would be liable in an action as if he had made an agreement to pay for the work done, that a fund for the benefit of the mortgagee should be liable to pay such debt of the owner, yet the only liability that the statute imposes is that the owner shall be liable to the persons doing the work, as if he had made a contract with such person to do such work. No lien on the property is created by the statute, and there is no obligation on the mortgagee to pay. If it appeared that there would be any balance of the money in the hands of the receiver after paying the mortgage, a different question would arise.

It is not claimed by the appellant that there is any other provision of the statute that would entitle him to the relief asked, and for the reason stated, we think the order should be affirmed, with $10 costs and disbursements.

o

Sedgwick, Ch.J., concurred.


author: Sedgwick, Ch. J. Ingraham, J.

text:
    GILBERT PORTEOUS, et al., Respondents, v. FRANCIS W. WILLIAMS, et al., Appellants.

      Contract, cancellation of, by acceptance of subsequent contract tendered on condition of cancellation of former—Agent, conflicting testimony as to authority conferred—evidence as to object principal had in view admissible. .

    Where one of the parties to a contract,—e. g., a charter-party,—executed a subsequent one, and sent it to the other party with a letter that he executed it “ .the former being canceled,” to which that other replied in effect that the former contract was not canceled; whereupon he who sent the subsequent one, replied by telegram, in substance, that former 'contract, “was canceled, or I would not have signed another. Do you confirm charter upon copy sent you or not ?” To which this reply came by telegram “We accept charter as per copies sent us,” and subsequently one by letter confirming the copies sent,—Held, that the party sending the copies of the subsequent charter, first made the cancellation of the former one a condition of being bound by a subsequent one; which condition was accepted by the other; the legal effect of which was to discharge all parties thereto from all liabilities and obligations thereunder (By Sedgwick, Oh. J., and Ingraham, J.).
    In the case at bar, one of the questions was as to what authority was given to one Card, who made the contract sued on, as agent of defendants. The contract sued on was a charter party whereby a chartered vessel was to proceed to Charleston with reasonable dispatch, subject to any delay caused by the perils of the sea, and there take on a cargo of phosphate rock, to be shipped by defendants. Card testified to a certain conversation with the acting partner of defendant, which, as testified to by him, gave him authority to make the contract as sued on. The acting partner testified that in that conversation an April shipment only was spoken of, and that the conversation had reference to an April shipment and that only. Held, that evidence, that at the time of the conversation, defendants had in the course of their business, made a contract for the shipment of phosphate rock in bulk, in the month of April, was admissible (By Sedgwick, Oh. J.).
    Before Sedgwick, Oh. J., and Ingraham, J.

      Decided May 3, 1886.
    Appeal by defendants from judgment entered on verdict in favor of plaintiffs.
    The facts appear in the opinion.

      L. JS. Arnold, Jr., attorney and of counsel for appellants,
    on the questions considered in the opinion, argued :— I. This charter party, upon which the respondents base their cause of action, was canceled by mutual consent. This appears from the correspondence between Seager Brothers and Mr. Card. Mr. Card notified Seager Brothers by letter, dated April 17,1882, that the appellants were the charterers under the charter party of March 20, and that they had given him notice that if the “ Limosa” did not arrive in time for an April shipment, they would cancel the charter; and he added that he would cancel the charter if the steamer did hot arrive in time. On April 2, Mr. Card wrote again as follows : “I would say that Messrs. Williams, Black & Williams, of this city, are in reality the charterers of the S. S. ‘Limosa’ and are ready and willing to assume all the responsibility of the charter made in my name, believing that they had a legal right to cancel the charter, in which opinion I concur. If, however, you do not consider them as the charterers, but look to me, then I will assume the responsibility, and now notify you that I cancel the charter dated March 20, ulto, and positively refuse to load the S. S. ‘ Limosa ’ under the same.” The offer of the appellants to re-charter was made by Card to the Seagers by telegram, and by letters dated April 20, 21. Seager Brothers replied to the telegram by letters dated April 21, as follows : “We decline as already informed you to recognize any party but yourself in the matter of this steamer’s charter and insist upon performance of contract as per charter party.” And in answer to the letters of Mr. Card dated April 21 and 22, Seager Bros, telegraphed that they would accept the offer of twenty shillings and hold Card liable for difference in freight between the two charters. To this Mr. Card replied “I confirm my letters April 21 and 22. I make your firm offer ‘ Limosa ’ twenty shillings, lay days and other conditions same as in canceled charter party, dated March 20.” Seager Brothers replied: “Tour yesterday’s telegram received. We accept without prejudice to the rights of either party on previous charter party. Vessel ready to sail to-day. Confirm immediately otherwise shall charter ‘Limosa’ for your account.” From the foregoing correspondence it is clear that Mr. Card did not intend to agree to, nor did he in fact agree to, any reservations of the respondents’ rights under the first charter party. The telegram of April 25, did not constitute the contract, for it left essential matters affecting the rights of the parties open for further consideration ; and Card expressly stated in it, while confirming Seager’s telegram, that he would send copies of the charter party that night. Until that charter party was received and its contents known to Seager Bros., and until it was accepted by them, neither Seager Brothers nor Card was bound by what had passed between them (Brown v. N. Y. Central R. R. Co., 44 N. Y. 79 ; Beach v. R. R. Co., 37 Ib. 457; Renard v. Sampson, 12 Ib. 561). The evidence shows that Seager Bros., accepted the new charter party, containing new provisions, (viz : providing for a May shipment), on condition that the first charter party was canceled without any reservation, and that the appellants re-chartered on those terms. This constituted the contract and released not only the appellants, but Card, from all liability under the first charter party (Lattimore v. Harsen, 14 Johns. 329 ; Green v. Green, 9 Cow. 50; Dearborn v. Cross, 7 Ib. 48 ; Holmes v. Doane, 9 Cush. 135 ; Monroe v. Perkins, 9 Pick. 298 ; Blood v. Enos, 12 Vt. 625).
    II. The court also erred in excluding the evidence that the appellants needed a ship for an April shipment and as the effect of their not getting one. The rulings of the justice on these points prevented the appellants from showing the obligations they had assumed, which were the foundation of their employment of Card as their broker, and thus a part of the res gestee. In view of the conflict of evidence between Card and Mr. Williams, this worked a serious injury to the appellants.

      E. B. Convers, attorney and of counsel for respondents,
    on the questions considered in the opinion, argued : —I. It is apparent from the correspondence that the parties were making, as the court below said, “a subsequent agreement which was without prejudice to the rights of either party, and, therefore, only went in diminution of damages.”
    II. Ho “valid contract” was necessary to reserve the plaintiffs’ rights under the first charter. The defendants’ absolute refusal to load thereunder relieved the defendants from the duty of making tender of the vessel under the same, and gave rise to a cause of action at once. When, therefore, the agent could obtain no higher rate for the vessel elsewhere, and re-chartered her to the defendants, the plaintiffs’ cause of action under the first • charter had accrued, and the only effect of the second charter was to reduce that cause of action by twenty shillings per ton. So far from requiring a valid contract to reserve their rights, it would be necessary, in order to sustain defendants’ contention, to give evidence of an express waiver of them.
   Sedgwick, Ch. J.

The action was by the owners of the steamship “Limosa,” against the defendants as charterers, for an alleged breach in not loading as provided by the charter. The charter was not made by the defendants, nor did their names appear as charterers. The plaintiffs’ names did not appear as principals on the charter. They were represented by their agents, Seager & Brothers. One Card appeared to be the charterer. It was claimed by the plaintiffs that Card acted as the agent of the defendants. The defendants did business in Charleston, South Carolina. Seager & Brothers did business in Hew York. The charter, as it was construed by the plaintiffs, provided that the “Limosa” should proceed to Charleston with all reasonable dispatch, subject to any delay caused by the perils of the sea. It did not provide for readiness to take an April shipment at Charleston.

On the trial the plaintiffs took the position that Card was authorized to make the charter as it was. Card testified that he was thus authorized. The defendants took the position that, in the conversation which Card testified to as the authority, the partner acting for them had referred to obtaining a vessel for an April shipment, and no other. They also claimed that the arrangement was that they were to take a vessel from Card, and not that Card should bind them to third parties, of whom Card, acting as broker, for defendants, should charter the vessel. The acting partner testified as a witness that he had spoken only of a vessel for an April shipment. When the case went to the jury, the single question of fact left to them was the nature of the conversation between Card and the acting partner, as to which they were in conflict. When the acting partner was on the stand, the counsel for defendant asked him questions appropriate to elicit testimony that at the time of the conversation the defendants had, in the course of their business, made a contract, or contracts, for the shipment of phosphate rock, in bulk, in the month of April. The cargo of the vessel to be chartered was to be phosphate rock. The court, on objection, excluded these questions.

In the conflict of witnesses, a relevant subject of inquiry by the jury was the motive of the defendants— the reason for their action. In determining the probabilities of the testimony, and the credibility of the witnesses, it was a sound argument that the declarations of the acting partner conformed to the object he had in view, and this would be shown by the kind of need the defendants had for facilities to ship goods; that is, whether it was for their interest to ship the goods in April, or whether they could wait indefinitely. As the jury might have been materially affected by the proof of the facts, judgment upon the verdict should be set aside.

Other questions made at the trial call for further consideration, for the purposes of the new trial that must be had.

In the month of April, the “ Limosa ” arrived at Hew York, so seriously damaged from a disaster at sea, that it was judged by Card and the defendants, to whom report was made of her condition, that the making of the necessary repairs would keep her at Hew York so long, that she could not be at Charleston in time to take a cargo in the month of April. There was testimony for the defendants, that until after this action was begun they never knew the terms of the charter. They, thinking it provided for taking a cargo in April, upon hearing of the disaster, told Card that they would not take the vessel. Card wrote to Seager & Brothers, that his principals canceled the policy, and bargaining began about a new charter to be made for the same kind of cargo for shipment in May. Card insisted that the making of the new charter should be upon condition of the cancellation of the one in suit here. Seager & Brothers insisted that the making of the new charter should leave unaffected the rights of the parties under the old charter. Before the matter was closed, Card sent to Seager Brothers four copies of the proposed new charter of the “Limosa” signed by himself, with an accompanying letter in which he stated at the close, “I now beg to confirm charter made to-day, the former being canceled, and send you herewith four copies of charter.” The proposed charter contained a provision for a May shipment. Seager Brothers by telegram insisted on erasing this provision, and said that the last sentence of his letter inclosing the copies was contrary to the agreement—the former charter not being canceled. The matter at that point was open, neither party being bound. On April 27, Card wrote, after referring to the last communication from Seager Brothers, ‘ ‘ As I don’t exactly understand what you mean by this telegram, I am wiring you this evening by night message as follows, in order to ascertain what you are going to do in the matter, ‘ Limosa ’ charter dated March 20, was canceled or I would not have signed another. Do you confirm charter dated April 25, as per copies sent you, or not.” This conditioned Card being bound by the charter he sent, upon the other party agreeing to cancel the charter in this action. The next day Seager Brothers telegraphed “We accept 1 Limosa ’ charter as per copies sent to us,” and in a letter of 28th acknowledged the receipt of Card’s telegram and confirmed the copies of the charter sent by Card. This was an acceptance of the condition referred to and canceled, as they called it, the first charter. The legal effect was that the plaintiffs, through their agents, Seager Brothers, for a consideration, discharged whoever was liable on the charter from its obligation to them.

It further appears that there was a question of fact, as to whether the plaintiff had not elected finally to hold Card upon the charter, and not to look to defendants as undisclosed principals.

Judgment reversed, new trial ordered, with costs to abide event.

Ingraham, J.

(Concurring)—I concur on the ground that the charter sued on was canceled and discharged.


author: Per Curiam.

text:
    ANNA BARRY, Appellant, v. HAMBURG-BREMEN FIRE INSURANCE CO., Respondent.

      Fire insurance— Clause in policy against transfers.

    Where a policy of fire insurance contains a clause avoiding the policy in case of a sale, transfer, or change in title or possession, by voluntary conveyance without consent, a deed absolute in form, although intended and given as a security for a debt, whether such intention is evidenced by a written defeasance, dehors the deed, or by an' oral arrangement in the nature of a defeasance accompanying the conveyance, constitutes a transfer or change in title by voluntary conveyance within the clause, and avoids the policy.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided May 3, 1886.
    Appeal by plaintiff from judgment, entered upon verdict for defendant, directed by the court.
    The action was upon a policy of insurance which insured against loss by fire ‘ ‘ Julia Clark, as owner—loss, if any, payable to Anna Barry, mortgagee.” The policy by its terms became void, “if the property be sold or transferred,- or any change take place in the title or possession, whether by legal process, judicial decree, or voluntary transfer, or conveyance, without the consent of this company written hereon.”
    Julia Clark, with the consent of the company, conveyed the property in fee to Maria Sleight. The defendant indorsed upon the policy, “This company hereby agrees to recognize Maria Sleight as owner.” On the trial, defendant proved that Maria Sleight executed and delivered a conveyance of the premises, apparently in fee, to Michael Moloughney, and that afterwards Moloughney executed and delivered a like deed to John H. Corwin. Both deeds were recorded. The plaintiff then offered to prove that Maria Sleight, at the time of the deed made by her, was indebted in a certain sum to Moloughney, the grantee, and that the absolute conveyance in form was intended by both parties to be only security for the payment of the indebtedness ; and also offered to prove that Maria Sleight, being also indebted to Corwin, the grantee of Moloughney, procured Moloughney to relinquish his security, under the deed to him, and to execute to Corwin the deed made to him, which, although absolute on its face, was intended to be only a security for the payment of the indebtedness to Corwin. The plaintiff also offered to show that Maria Sleight remained in possession down to the action. Upon the objection of the defendant that such proof would be inadmissible, the court sustained the objection, and directed a verdict for defendant. To this the plaintiff excepted.

      B. McLean Shaw, attorney, and of counsel, and W. E. Osborn, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. A deed though in form an absolute conveyance, yet in fact intended and given only as security for a debt, is a mortgage, and is therefore not a “transfer or conveyance,” or a “sale or transfer of the property,” nor does it change the title (Howe v. Keteltas, 46 N. Y. 605 ; Odell v. Montross, 68 Ib. 499 ; Dunham v. Dey, 15 John. 555 ; Clark v. Henry, 2 Cow. 322; Murray v. Walker, 31 N. Y. 401; Carr v.
      Carr, 52 Ib. 251; Walton v. Cronly’s Admr., 14 Wend. 63). A distinction should here be noted between mortgage and a trust, the courts holding that while a deed, absolute in form, may be shown to have been intended as, and should therefore, have the effect only of a mortgage, a trust in favor of the grantee in such deed cannot be established by parol (Sturtevant v. Sturtevant, 20 N. Y. 39). “Under the Code of Procedure, parol evidence is admissible to show that the assignment of a lease though absolute in terms, was intended as a mortgage ” (Despard v. Walbridge, 15 N. Y. 374).
    II. The court upon the trial of this cause, held in substance, that because these deeds were absolute upon their face, therefore, they constituted, per se, both a transfer, and a change of title within the meaning of the policy, although we were able to prove and should prove, that they were in fact given, and intended as mortgages only, thus applying to a policy of insurance a different rule of construction, and to the words used therein, a more restricted interpretation and meaning than are applicable to other kinds of contracts. That this was clear error was conclusively shown by the decision of the court of appeals in the case of Hodges v. Tennessee Marine & Fire Ins. Co. (8 N. Y. 416).

      Salomon & Dulon, attorneys, and Edward Salomon, of counsel for respondent,
    on the questions considered in the opinion, argued :—The deeds of conveyance, absolute upon their face, were both a “transfer” and a “change of title ” of the property insured which terminated the policy, although given to secure debts (Stoddard v. Rotton, 5 Bosw. 378). The clause in question is that if any change take place in the title or possession, the policy shall become void. Certainly, these conveyances were changes of title, and were intended as such, although as security for debts. The plaintiff’s counsel in the court below relied much upon the case of Hodges v. Tennessee Marine 6 Fire Ins. Co. (8 N. Y. 416). The decision, however, is only to the effect that an absolute conveyance given as security for a debt still leaves in the grantor an insurable interest. That is not the question in the case at bar. So the other cases which hold as the established doctrine in this state, that in equity, parol evidence may be admitted to show that a deed, absolute upon its face, was intended as security, do not help the plaintiff’s case, because, while under them, it might be proper to show, that notwithstanding the conveyance and transfer of her legal title, Mrs. Sleight retained a certain equitable interest in the property, those cases are very far from establishing the doctrine that an actual transfer of a legal title is not a change of title under the provisions of the policy in question. Although there has probably been no direct adjudication upon the precise point here presented, yet the following authoritative adjudications strongly bear upon it : Oakes v. Manufacturers’ Fire & Marine Ins. Co., 131 Mass. 161 ; Tomlinson v. Monmouth Mut. Fire Ins. Co., 67 Me. 232 ; Foote v. Hartford Ins. Co., 119 Mass. 239 ; Farmer’s Ins. Co. v. Archer, 36 Ohio State Rep. 608 ; Savage v. Howard Ins. Co., and Savage v. Long Island Ins. Co., 52 N. Y. 502. The case of Hitchcock v. Northwestern Ins. Co. (26 N. Y. 68), referred to in the foregoing case, turned upon a provision in the policy that it should be void in case of transfer or termination of the interest of the assured in the property insured, and as the plaintiff, after the conveyance, retained an insurable interest under the mortgage, there was no breach of the condition. In Kitts v. Massasoit Ins. Co. (56 Barb. 177), the case of Hitchcock v. Northwestern Ins. Co., was wrongly understood and applied. The distinction between a termination of the insurable interest and a change of title was not borne in mind. Van Deusen v. Charter Oak Fire & M. Ins. Co. (1 Rob. 55), and Hennesy v. Manhattan Fire Ins. Co. (28 Hun, 98), were simple mortgage cases, the mortgagors remaining in possession, and in so far as the language of the courts arguendo, seems to be opposed to that of the court of appeals in Savage v. Howard Ins. Co., the latter must prevail.
   Per Curiam.

The learned counsel for appellant in support of the exception to the ruling, excluding the evidence offered, took the ground that a deed although in form an absolute conveyance, yet in fact intended and given only as a security for a debt, is a mortgage. This is not formally or strictly correct. The instrument of conveyance in its own nature is, and cannot but be what it purports to be, namely, a conveyance. The written defeasance, dehors the conveyance, or the oral arrangement in the nature of a defeasance, coupled with the conveyance make the mortgage, but the defeasance does not vary the terms of the conveyance. In Horn v. Ketaltas (46 N. Y. 610), the opinion says : “Therule does not conflict with that other rule which forbids that a deed or other instrument shall be contradicted or varied by parol evidence.” It has never been doubted that the case of Webb v. Rice (1 Hill, 606), declared the law of this state that “ oral evidence is not admissible in a court of law to show that a deed absolute on its face was intended as a mortgage.” It was only in courts of equity, that such evidence was admitted for such a purpose. Courts of equity did not attempt to destroy or vary the legal right, excepting that enforcing equitable obligations they proceeded to compel the defendant to use the legal right in an equitable way. Through the conveyance, the grantee, as mortgagee, held the legal title, or he held nothing, but equitably he was bound to use that legal title only for the payment of the debt, and beyond this to hold it for the use of the grantor or mortgagor. Any other use would be fraudulent and inequitable.

In Strong v. Stewart (4 Johns. Ch. 166), the chancellor decreed that the plaintiff had a right to redeem “on the strength of the authorities, and on the proof of the loan, and of the fraud on the part of the defendants in attempting to convert a mortgage into an absolute sale.” The authorities that were cited went on the ground that equitable obligations were to be enforced and fraud prevented. They were not all cases of absolute conveyances, with oral proof that they were intended as security for indebtedness. In Cotterell v. Purchase (Cases Temp. Talbot, 63), the chancellor said, “they who take a conveyance of an estate as a mortgage, without any defeasance are guilty of a fraud,” meaning no doubt, that it was a fraud to claim an absolute estate. In Maxwell v. Mountacute (Pre. in Ch. [Finch] 526), “So when a man treated to lend money on a mortgage and the conveyance proposed was an absolute deed from the mortgagor and a deed of defeasance from the mortgagee, and after the mortgagee had got the conveyance, he refused to execute the defeasance, yet my Lord Nottingham decreed it against him, on the fraud after the statute.” In Walker v. Walker (2 Atk. 98), it was decided that the defendant may be admitted to read parol evidence to rebut an equity set up by the bill. It was said, 1 ‘ Suppose a person who advances money should, after he has executed,” meaning received, “the absolute conveyance, refuse to execute the defeasance, will not this court relieve against such fraud?” In Young v. Paacky (2 Atk. 256), “there have been many cases even since the statute of frauds, where a person has obtained an absolute conveyance from another, in order to answer one particular purpose, but has afterwards made a use of it for another, that this court has relieved under the head of fraud, for a practice of this sort is a deceit and fraud, which this court ought to reheve against.” A large mass of authorities is given in Wh. & Tudor’s L. Cas. Eq. vol. 2, 1986, to support the proposition that 1 ‘ such evidence does not contradict the instrument or prevent it from passing the legal title, but simply establishes the existence of a superior equity which the grantee is not at liberty to disregard.”

It will follow, then, that the legal title to the house insured did pass from Sleight to Moloughney, and again from Moloughney to Corwin. A change took place in the title, although Moloughney and Corwin may have been equitably bound to use that title only as security for the payment of debts. The policy became void, as its terms provided it should, if there were any change in the title. It does not seem that Hodge v. Tennessee M. & F. Ins. Co. (8 N. Y. 416) calls for a different conclusion. The question of the case was, in the opinion of the court, whether the person originally insured had, at the time he assigned the policy to the plaintiff, an insurable interest. Contemporaneously with the assignment of the policy, the assignor conveyed to the plaintiff the insured premises by a deed, absolute upon its face. It was assumed that if this deed carried with it all the assignor’s interest in the premises, the policy fell. The court of appeals allowed the plaintiff to show by oral evidence that the conveyance was intended to be security for a debt to the plaintiff, and held that then it appeared that there remained in the assignee some interest in the property. It is consistent with this that the title had changed, but because the plaintiff’s right to use that title was of a limited kind, the assignor had the interest outside of that limited use. The policy "did not provide that it should be void upon a mere change of the title. •

Judgment affirmed, with costs.


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    CARR & HOBSON (Limited) v. ANN J. A. STERLING.

      Undertaking on arrest, invalid as a statutory undertaking.—“Final judgment”—meaning of the phrase as used in such undertaking—Rights and liabilities of the undertaker.

    The final judgment, to the mandate issued on which the party executing the undertaking undertakes that the arrested party shall render himself amenable, is a judgment upon the very claim on which the order of arrest was made, as it was presented by that order. Consequently, no liability arises on such an undertaking, out of the failure of the defendant to render himself amenable to a mandate issued on a judgment rend ered not only for that claim, but also for a claim not then made.

      A fortiori, no liability arises when the additional claim, for which judgment was rendered, is founded on a cause of action not originally contained in the complaint, but inserted therein by amendment made under the order of the court, after defendant’s defense in answering, and after the time to amend as of course had expired.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Exception taken by plaintiff to the dismissal of complaint, at trial term, before a jury, ordered to be heard in the first instance at general term.
    The facts appear in the opinion.

      John L. Logan, attorney and of counsel for plaintiff,
    as bearing on the questions considered in the opinion, argued :—The law seems to be settled that the bail cannot impeach the judgment obtained against the principal except by application upon the judgment itself (Jewett v. Crane, 35 Barb. 208 ; Burnel v. Lynch, 44 N. Y. 162).

      L. Lajlin Kellogg, attorney and of counsel for defendant,
    as bearing on the questions considered in the opinion, argued :—The plaintiff cannot recover in the case, for the reason that the judgment against the defendant Holt, in the action in which the arrest was granted, is illegal and void. The complaint in that action asked judgment for $1,000 and interest. Judgment was entered by order of the court for $13,618.66, with interest from April 3, 1882, or an increase of $6,618.66. This judgment was given by default. The defendant Holt never appeared. It is claimed that this judgment is illegal and void. It is distinctly provided in the Code, that “where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint (Code Civ. Pro. § 1207). A judgment granting relief not demanded in the complaint is not merely irregular but void or voidable for want of authority in the court to render it (Simonson v. Blake, 12 Abb. 331; Andrews v. Monilaus, 8 Hun,
      65; Bartlett v. Holmes, 12 Ib. 398 ; Hurd v. Leavensworth, 1 C. R. N. S. 278 ; Briggs v. Oliver, 68 N. Y. 336 ; Argall v. Pitts, 78 Ib. 243). It is held that this provision was intended in favor of persons who are defendants and who are interested in the defense of the action (Peck, as Trustee v. N. Y. & N. J. R. R. Co., 85 N. Y. 246). In case of a lack of jurisdiction in the body to make the decision, the decision may be attacked whenever it is asserted, for if there was no authorized body or court there could be no authorized decision (Osterhaudt v. Hyland, 27 Hun, 167; Lange v. Benedict, 73 N. Y. 12). It thus appears that the judgment as entered was wholly beyond the jurisdiction of the court. This judgment was preliminary to the issuance of the executions. The executions could not be issued until the judgment had been duly rendered. It was not duly rendered or entered or given by the court as pleaded in the complaint, for the reason that the court had no jurisdiction to render such a judgment. This defendant was interested in it, for she could not be held liable on her undertaking until judgment had duly and regularly, within the jurisdiction of the court, been had against this defendant. Her rights were injured by this judgment, because she would have been entitled to have had the amounts paid by the defendant Holt tó the plaintiff, as alleged in its complaint, $2,381.20, taken out of the original sum, for which he was sued, in contradistinction from having them taken out of the enlarged sum. The court was wrong in its admission of this judgment-roll, upon the objection of the defendant’s counsel, and under his exception, while it was right in dismissing the complaint upon this as one of the grounds.
   Per Curiam.

The action was upon an undertaking signed by the defendant. In an action by the present plaintiff against one Holt, an order for the arrest of Holt had been executed, and the undertaking, it will be assumed, was given to secure the release of Holt from custody. The order of arrest recited that the “ground of the arrest is the embezzlement and appropriation to his own use, by the said defendant, of funds belonging to said plaintiff, amounting to about $7,000.” The undertaking provided, after referring to the order of arrest “that the above named defendant, arrested as aforesaid, shall at all times render himself amenable. to any mandate which may be issued to enforce a final judgment against him in the action.”

The complaint in the action against Holt alleged “that he appropriated, of the funds belonging to said plaintiff, to his own use, sums equal in amount to $7,000,” and demanded judgment “for the sum of $7,000.” Holt did not appear in the action and an order of reference was made “ to take proof as to the truth of the allegations of the complaint.” The testimony before the referee disclosed that the defendant had embezzled other amounts than such as composed the sum of $7,000, demanded in the complaint, and that the aggregate of the embezzlements was $13,618.66, and this amount was reported as proved. On the report and an affidavit, an order, ex parte was made “that the complaint be amended so as to entitle the plaintiff to recover $13,618.66 . . and judgment is hereby ordered to be entered in conformity with the report of said referee.” Judgment was accordingly entered. Execution, first against the property, and then against the person of the defendant Holt was issued, and return made to the former “ no personal or real pronerty, ” and to the latter “ defendant not found.”

It is to be observed that in reality the amendment added to the complaint new causes of action. The action was not upon contract, or for money had and received, when perhaps the law might imply a single promise to return all the amounts embezzled, but was for embezzlements, each one of which formed a separate cause of action. The amendments not having been served upon the defendant Holt, he had not confessed their truth nor had there been any default of answer as to them. The time to amend as of course had passed. Section 1207 provided that when there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. To justify a recovery against the present defendant, it would be necessary to hold that she undertook that the defendant Holt, would render himself on an execution upon a judgment which would embrace a claim which the plaintiff had not made against him, and which had not been competently adjudicated between the plaintiff and him.

In Toles v. Adee (91 N. Y. 562), it was held that where, as in the present case, the undertaking was not valid as a statutory undertaking of bail, a defendant was held to the obligations of a surety under a contract voluntarily made upon consideration, and had the rights of such a surety. The inquiry is pertinent, what “final judgment ” did the contract intend should be the foundation of the mandate to which Holt should render himself amenable ? It necessarily must have been a judgment upon the very claim which was then made, and which was the only claim the parties had in view, and not a claim which the plaintiff had not asserted, and of which they and the present defendant were ignorant. 'Whether the defendant would have undertaken that Holt should render himself to a judgment for the amount that it was entered for, is speculative. It is clear that she provided against an unfortunate decision as to this, by contracting only in respect of the claim as it was presented.

Furthermore, she was entitled to the benefit of such action as Holt might take, in respect of any part of the claim which the plaintiff might make erroneously. It certainly was not meant that the judgment should be for a claim of which Holt should have no notice. For these reasons the judge below correctly held, that the plaintiffs had no cause of action. They had not shown a breach of the undertaking.

Other facts were shown, which tended to sustain the defense, on other grounds. The matters that have been examined present that question which on the trial was the most free from doubt, as to whether the case should have gone to the jury.

Exception overruled.


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    GEORGE C. LEE, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence—Elevated Railroad—Provisions of chapter 399, Laws 1881, as to shutting gates, effect of—Damages, oha/i’ge as to putting plaintiff in his uninjured position, and as to compensation for Toeing compelled to Toe away from T/usiness.

    Chapter 399 of the Laws of 1881, does not regulate the time when, or the contingency upon which the guard of Elevated Railroad should shut the gates of the cars.
    The guard therefore, in shutting the gates of a car, must be controlled by the existing circumstances, and negligence may be attributed to him for shutting the gates, if the circumstances show negligence.
    If, after a negligent shutting, he does an act, which by reason of such shutting, and keeping shut of the gates, results in a greater injury than the mere shutting would have produced, he and his employers are responsible therefor.
    Although his action may have been induced by an error of judgment as to his duty, yet it may also have been negligence; and if negligence, he and his employers are responsible for the injury resulting therefrom.
    The charging that the jury should give such sum as would compensate the plaintiff for the injury and “ put him in such a position as he would have been in if he had not been injured,” is not error.
    A charge that plaintiff should recover compensation “ for his being compelled to be away from his business for the time he says he was confined to his bed, although there is no evidence that he has lost anything in consequence of his absence,” is not erroneous, where the court also expressly charges the jury that it was not to consider any injury to the business or for loss of time, or of services, and that nothing was to be allowed for loss of time.
    Before Sedgwick, Oh. J. and Freedman, J.

      Decided May, 3, 1886.
    Appeal by defendant from judgment entered on verdict for plaintiff and from order denying defendant’s motion for a new trial made upon the minutes.

      The facts appear in the opinion.

      Davies & Bapallo, attorneys, and Edward C. James, of counsel for appellant.

      Francis H. Bosworth, attorney, and Ira Shafer, of counsel for respondent.
   Per Curiam.

The action was for damages for alleged injury due to negligence of defendant’s brakeman or guard. The following facts were proved: The plaintiff approached the platform of a car of a train of defendants, standing and without motion. The guard was upon that platform, and saw or might have seen the plaintiff approaching. The gate of the platform was open. The plaintiff placed one foot upon the platform. Before he could step with the other foot, the guard closed the gate upon plaintiff’s foot. Immediately thereafter, or contemporaneously with the first motion imparted to the gate, the guard said, “the train is full ’’—pulling the signal for the train to start after the gate was closed. The closing of the gate fixed the foot of plaintiff, so that he could not then withdraw. He told the man that he could not move. The train was not stopped. By violent struggling and the twisting of the foot, the plaintiff extricated himself, before the platform was passed.

Upon the appeal an argument was made that the conduct of the guard was in obedience of chapter 399, Laws of 1881. Many considerations might be pointed out which would show the argument invalid. One will suffice in the judgment of the court. There is nothing in the statute which regulates the time when the guard should shut the gate ; or the contingency upon which it should be shut. The guard is to be controlled by existing circumstances. He had no right, as the jury have found, to shut it upon plaintiff, before he informed the latter that the train was full. If he thereafter, caused the train to move, he was responsible for bringing the plaintiff within a group of facts which was the cause of greater harm to plaintiff, than he first suffered by being pinned to the platform.

It was supposed by the defendant’s learned counsel that the guard erroneously judged what his duty was. This may have been the case, yet he may have been negligent also. The latter question was left to the jury.

Some exceptions that were argued relate to the rights of the plaintiff as to damages. The judge instructed the jury that if they found for the plaintiff, they should give him such sum as he was fairly entitled to, to compensate him for the injury “ and to put him in such a position as he would have been in if he had not been injured.” There was an exception to the latter phrase. It was not an error, and the jury could not have been misled. The position meant was pecuniary position. Before he was hurt, he was in a certain condition. An injury occurred. If the jury should compensate him for it, he would be in the pecuniary condition that existed before the injury.

The court charged that the plaintiff should recover compensation “for his being compelled to be away from his business for the time he says he was confined to his bed, although there is no evidence tha,t he has lost anything, in consequence of his absence.” The defendant’s counsel, supposing that the charge was that the jury might compensate the plaintiff for a loss of business or business profits, excepted to the charge, as allowing damages for loss of time, or for services, or for injury to the business. The court expressly told the jury, that it was not to consider any injury to the business or for loss of time or of services, and that nothing was to be allowed for loss of time. There was no further exception. The court meant that the jury should consider the compensation for the personal disturbance and annoyance, in being confined to his bed, away from his business, not for any pecuniary loss occasioned by it, in the business. There was, however, no exception to the charge, from such a point of view.

The judgment ana order appealed from are affirmed, with costs.


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    AUGUSTUS A. LEVEY, Appellant, v. THE N. Y. CENTRAL & HUDSON RIVER R. R. CO., Respondent.

      Order for examination and production of writing, when it is in substance an order for discovery, it must be applied for under § 805. Defendant corporation, a discovery by cannot be had under subdivision 7 of § 872.
    An order requiring an officer of a defendant corporation to appear and be examined touching certain writings, and to produce such writings, and further requiring the corporation and such officer, to wit, individually and in his official capacity, to produce and discover such writings, and give the plaintiff an inspection or copy,or permission to copy such writings, and to deposit such writings with the judge who made the order, by a day therein named, there to remain for thirty days, is substantially an order for discovery of documents,and must be applied for under section 805, upon petition and order to show cause as required by that section.
    It does not fall within subdivision 7 of section 872, relative to depositions. The production referred to in that subdivision is ancillary to the oral examination of a person as a witness, generally, in an action commenced or expected to be brought.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal by plaintiff from an order vacating order obtained by plaintiff, in examination of officer of defendant, as claimed by plaintiff, and for production and inspection of certain papers.
    The order required that the defendant and Edward W. Rossiter, its treasurer, appear before a judge at chambers, on November 21, 1885, “then and there to be examined touching certain proposals in writing contained in letters written by one Clarence Levey to the defendant,” that were particularly described, and that the defendant and said Rossiter have, at the time and place before named, the aforesaid letters and certain vouchers of four classes, “ and that the said defendant corporation and the said Rossiter, ■ individually and as treasurer, then and there produce and discover the said letter and vouchers . . and then and there give to the plaintiff herein an inspec tion or copy, or permission to take a copy of any or all of the said letters and vouchers, and for such purposes . . produce and deposit with said judge at his chambers, &c., on or before the day first named, the said letters and vouchers there to remain for the period of thirty days from, &c.”

      Wingate & Cullen, attorneys, and George W. Wingate, of counsel for appellant,
    argue—I. Theorder for the defendant’s examination could not be properly vacated, as it was in the exact form specifically prescribed by subd. 7, § 872, Code Civ. Pro., as that subdivision was amended by chapter 536, Laws 1880, and as that section refers to a proceeding founded upon an affidavit, not a petition. That the order in question was properly granted, is expressly adjudicated by the general term of the supreme court in the first department in Frothingham v. Broadway & 7th Av. R. R. Co.
    II. The amendment of 1880 to the section in question was passed for the express purpose of uniting, in the case of a corporation, a proceeding for the examination of its officers or directors with a discovery of its papers.
    III. The subdivision in question was inserted by the amendment of 1880, in consequence of the decisions in Boorman v. Atlantic & Pacific R. R. Co. (17 Hun, 555 ; 78 N. Y. 599), deciding that directors of a corporation were not parties, and therefore could not be examined under § 870 (Reichmann v. Manhattan Co., 26 Hun, 433). The words “ examination or inspection,” make the right co-extensive with what could be obtained in equity by a bill of discovery (Townsend v. Lawrence, 9 Wend. 458 ; Wallis v. Murray, 4 Cow. 101 ; Lawrence v. Ocean Ins. Co., 11 Johns. 245; General Rule of Practice 85). Under the former practice discovery was of a dual nature ; first, to discover the existence of written evidence assumed or believed to be in the possession of the adverse party ; and then, if its existence and the possession of it was not denied, a discovery of its concents (Pollock on Courts, 8).
    IV. The intention and effect of subd. 7, § 872, being as above shown to consolidate into one proceeding “examination before trial ” and “ discovery ” quoad corporations, it consequently operated as a repeal pro tanto of § 803 (which was taken from 2 R. S. 199, § 21, and was chapter 38 of the Laws of 1841), so far at least (in the cases of corporations) as §§ 803 and 872 are inconsistent (Heckman v. Pinkney, 81 N. Y. 211; People ex rel., Eden Musee Co. v. Carr, 66 Hun, 488 ; People ex rel., Ross v. Brooklyn, 69 N. Y. 605; Excelsior Petroleum Co. v. Lacey, 63 Ib. 422 ; Potter’s Dwarris on Statutes, 115, 154-6 ; Vattel’s Maxims, No. 40 ; Dexter & Limerick Plank Road Co. v. Allen, 16 Barb. 15 ; Daviess v. Fairbairn, 3 How. [U. S.] 636 ; Burdick v. Phillips, 17 Week. Dig. 440; Isaacs v. Isaacs, 10 Daly, 306).
    V. It is therefore clear that but one order is contemplated to be made in a case coming under the provisions of subd. 7, § 872, Code Civ. Pro., which shall include both remedies precisely in the form that the order vacated was drawn (Lefferts v. Brampton, 24 How. Pr. 263).
    VI. Though no case has been found in whicn any interpretation of the expression “ examination or inspection ” contained in subd. 7 of § 872, is directly given, yet in the case of a statute where the right of “examination ” was given to stockholders under certain circumstances (1 R. S. 601, § 1), it was held that this right included not merely an inspection of the books, but also the right to take memoranda or copies of them. And the court said, “ if submitted for examination it must be so much under his control that he can know, remember and report as to its contents ” (Brouwer v. Cotheal, 10 Barb. 216).
    VII. McGuffin v. Dinsmore (4 Abb. N. C. 244; S. C., 1 Civ. Pro. R. 185), has no application, having been decided March, 1878, two years prior to the amendment to subd. 7, § 872, now under consideration. Black v. Curry (1 Civ. Pro. R. 193), 'was with reference to the examination of an individual before trial, in which case, sub.. 7, § 872, did not apply. Consequently, this decision has no application to a case like the present, for the examination of a corporation only, the statute making a distinction between a proceeding against it and against an individual.

      Frank Loomis, attorney, and of counsel for respondent,
    argued :—The application for a discovery and inspection is assumed to have been founded on §§ 803-809, Code Civ. Pro. and for the attendance and examination of the witness, upon §§ 870-886. Section 805 provides that the moving party must present a petition praying for the discovery or inspection, and verified by affidavit, upon which an order may be made directing 'the party against whom the discovery or inspection is sought to allow it, or, in default thereof, to show cause before the court, at a time and place and upon a notice therein specified, why the prayer of the petition should not be granted. ' Section 807 provides that upon the return of the order to show cause the court may make such an order with respect to the discovery or inspection prayed for, as justice requires. Section 806 prescribes that the adverse party may obtain the vacation of the order upon affidavits. As the plaintiff did not pursue, .in obtaining the order for discovery and inspection, the course prescribed by the statute, the order was properly vacated. The moving party cannot have a discovery and inspection of the books) See., of the adverse party on an order for the examination of such adverse party before trial. He must pursue separately the methods provided by §§ 803-809 (Martin v. Spofford, 3 Abb. N. C. 125 ; Hausman v. Sterling, 61 Barb. 347).
   Per Curiam.

The judge below held that the order was substantially for the discovery of documents under section 805 of the Code of Civil Procedure and that it should be vacated, as it was not made upon petition and order to show cause as required by that section.

The learned counsel for the appellant argues, that in a case like this, where the party sought to be examined is a corporation, the seventh subdivision of section 872 provides for a discovery of papers, as well as for an examination of a party as a witness in connection with the papers produced. The purpose and end of sections 872, and those before and after it, is to procure a deposition which may be filed, etc. The order to be made is to direct the examination of such persons and the production of such books and papers. There is no language which clearly indicates that the sections provide for the discovery of the papers, as an independent proceeding, and such a discovery sufficient for all purposes of justice, yet shaped to protect the rights of the defendant, is specifically provided in sections 805, et seq. The section 872, by its phrases of examination and inspection of the contents of books and papers and the production, does not intend an alternative to the oral examination of the witness, and not connected with the latter, but means something depending upon or ancillary to oral examination. It must be held that the section contemplates not an independent discovery, but an oral examination of a witness, which will involve the necessity of producing a paper as to which, or the contents of which, he can give evidence. It is true that some part of the order, taken by itself, might refer only to such an oral examination. The main feature, however, is the deposit of papers with the judge at chambers, to remain with him for thirty days, and all the rest is subordinate to this.

Order affirmed, with $10 costs, and disbursements to be taxed


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    JOSIAH LOCKWOOD v. JOHN T. McBRIDE.

      Void foreclosure—Purchaser or his successors in possession—Ejectment will not lie against, when.

    Where, under a deed given upon a foreclosure and sale, void by reason of the owner of the equity of redemption not being a party to the action, the purchaser or his successors in interest enter and remain in possession with the consent of the owner of the equity, ejectment will not lie against such purchaser or his successors so in possession, until there is redemption, or perhaps a tender of the amount due on the mortgage, within proper time.
    Howell v. Leavitt (95 N. Y. 617), distinguished.
    Before Sedgwick, Oh. J. and Freedman, J.

      Decided May 3, 1886.
    Exceptions of plaintiff ordered to be heard in the first instance at general term, the verdict having been directed for defendant.
    The facts sufficiently appear in the opinion.

      John Townshend, attorney, and of counsel for plaintiff,
    on the questions considered in the opinion, argued: that the plaintiff had made out a prima facie right to recover by showing a title in the assignee, an order to sell, a deed by the assignee reciting such sale and claim of title by defendant; and then made points on the subject as to whether such prima facie title had been divested.

      Q. W. H. Zeglio, attorney, and of counsel for defendant,
    on the questions considered in the opinion, argued :— In ejectment the plaintiff must recover upon the strength of- his own title ; he can take nothing by reason of any defect in that of defendant (Wallace v. Swinton, 64 N. Y. 188). The purchaser at a mortgage sale, ineffectual to pass the title, acquires thereby title to the mortgage. The purchaser acquires the rights of the mortgagee, and can defend their possession by virtue of the mortgage (Miner v. Beekman, 50 Ib. 337). Ejectment will not lie against a mortgagee in possession (Hubbell v. Moulson, 53 Ib. 225).
   Per Curiam.

The action was in ejectment. The complaint alleged that the plaintiff was lawfully seized and possessed in fee of the premises, and “that while plaintiff was so seized and possessed, and on the day and year last aforesaid, the defendant unlawfully ejected plaintiff from said premises.” As the case was tried, it was necessary for the plaintiff to prove this allegation to entitle him to maintain the action.

It was admitted on the trial that Wagstaff, an original owner in fee, had mortgaged the premises ; that in 1845, the mortgage had been foreclosed ; and that under the sale in foreclosure, one Parsons had become grantee of the master in chancery. The proceedings in the foreclosure were defective, in not making the owner of the equity of redemption a defendant. That owner was W. C. H. Waddell, assignee in bankruptcy, who became entitled to Wagstaff’s estate in the land, before the foreclosure suit began, Wagstaff having been decreed a bankrupt on his own petition. By the legal or equitable effect of the decree in foreclosure, and the sale thereunder, Parsons became assignee or owner of the mortgage.

On the trial the plaintiff made certain admissions. The language of some of these was that the ancestors in title of the defendant were seized in fee of the premises. It cannot be supposed that the plaintiff intended to admit the legal title of the ancestor referred to, for, beyond doubt, that would have admitted the title claimed by the defendant. But the language meant that the persons referred to were in possession of the land, and that is to be inferred, circumstantially, from the facts set out in the admissions. These admissions showed abundantly that the defendant was entitled to the rights of Parsons, as mortgagee in possession, and of the successors of Parsons.

The plaintiff, therefore, if he had any interest in the land, was not entitled to possession, being only the owner of the equity of redemption, until there was redemption or a tender of the amount due on the bond and mortgage. This conclusion does not conflict with Howell v. Leavitt (95 N. Y. 617), for here it is manifest that the mortgagee remained in possession with the consent of the owner of the equity of redemption. This appears circumstantially, from Parsons and his assigns remaining in possession without disturbance from 1846. It appears also from the conveyance made by the assignee in bankruptcy to Bement in 1844, and that from Bement to Parsons in 1850. It may be that the conveyance from the assignee, if he sold without an order of sale, was ineffectual to transfer the bankrupt’s former title. But as a fact, he believed it to be effectual, and his inaction for years after his grantee conveyed to Parsons, shows that he consented to Parsons’ possession of the land, or at least his purpose not to interfere with or attack it.

For these reasons, to show a right of possession, the plaintiff, if he had' title, should have proved that after the deed of Waddell to him, in 1883, he took possession, and was afterwards ejected by the defendants. These views sustain the action of the court dismissing the complaint. It is unnecessary to examine other and more doubtful considerations that were advanced on the argument.

The plaintiff’s exceptions are overruled, and judgment ordered for defendant on the verdict, with costs.


author: Per Curiam : Ingraham, J.

text:
    HENRIETTA FRANKLIN, Appellant, v. EDWARD PEARSALL, et al., Respondents.

      Taxes—Sale for in New YorJc—Leases, made on sale, when inoperative to give right to possession.

    A lease of lands made upon a sale of lands in the city and county of New York for non-payment of taxes levied for the years of 1874, 1875 and 1876, will not pass any right or interest to the lessee, when either— 1. The assessment roll assesses the lands sold as if they were owned by residents, when in fact they are owned by non-residents ; or, 2. When the warrants for the collection of the taxes were not signed either by the mayor or the recorder ; or, 3. When the description of the ownership of the lands in the pamphlet required by section 13, chapter 381, Laws of 1871, is simply the name of a person in a column, headed “ To whom assessed; ” or, 4. When the affidavit of service of notice of redemption at the time of the comptroller’s certificate next mentioned contains no certificate by the officer taking the oath that the affiant was a credible person ; or, 5. When the certificate of the comptroller attached to the lease, as to proof of service of notice for, and of non-redemption, is not under seal.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal from judgment entered on the report of a referee.
    The action was brought to recover possession of certain lands in the city of New York.
    The issues were tried before a referee.
    The facts sufficiently appear in such of the findings as are hereinafter, referred to and in his opinion, which was as follows :
    James A. Patrick, Referee.—“ This action is brought in ejectment to gain possession of premises No. 19 Ludlow street, in the city of New York. Plaintiff claims under a lease from the mayor, aldermen, &c., of the city of New York, for one thousand years, The premises in question were sold for non-payment of taxes for the years 1871 to 1876, both inclusive.
    1 ‘ The first question necessary to be considered is the validity of the assessment of the property in question for the above-mentioned years. The premises are now, and were at the-time of the assessment of taxes for the years 1871 to 1876, owned in common by Edward B. Pearsall, William Pearsall, Julia L. Pearsall, Jane S. Pearsall, Mary Jenkins, and Clara W. Muirhead, all children of one William Pearsall, who died about the year 1868. The property in the years ’71 to ’76 was assessed to ‘ William Pearsall ’ under the title c owner or occupant,” that is, the name William Pearsall appeared on the assessment rolls in a column so headed. All the tenants in common above referred to are non-residents, residing in the state of New Jersey. It is contended by defendants’ counsel that the property in question should have been assessed as nonresident lands. That it was not so assessed there can be no doubt, the witness who had the assessment rolls in charge before me, testifying that the assessment referred to above was the only assessment in the office of the receiver of taxes upon this property for those years.
    “The Revised Statutes, chapter XIII., title2, article 1, § 2, provides £ That land occupied by a person other than the owner may be assessed to the owner or occupant or as non-resident lands.’ During all the years ’71 to ’76 the property in question was not occupied by the tenants in common above referred to, but was occupied by other persons. This assessment in this manner would appear to be in violation of the statute. The assessment is neither made to the owner of the premises nor to an occupant, nor is it assessed as non-resident lands. It might be claimed that the name William Pearsall could as well refer to the son now living as to his deceased father, but even though that be true, the present William Pearsall is not a resident of this county, and is not, therefore, a taxable inhabitant, and further, he is not the owner of the premises in question; he is simply one of several. Where an assessed person is a resident of the county where he is assessed, the assessment of a tax against him creates a debt due by him of a personal nature ; it is true that the debt is a lien upon his property, but that in no way affects the truth of the statement that ifc is the man assessed and not the property that owes the debt. Where a party is not a resident of the comity the assessors have no power to create this indebtedness by inserting his name in the assessment rolls of their county, and if they attempt to do so the assessment is void (Hilton v. Fonda, 86 N. Y. 339). When lands situated in a county are owned by non-residents, the statutes have prescribed a different course ; they must (among other things) be described as ‘ non-resident ’ lands ; the assessment against them creates an indebtedness upon the land itself, and not against any particular person, although the initiatory steps in the two cases may differ but very slightly. Still that difference creates a vastly different liability, and must be strictly followed to become the foundation of a proceeding such as the present. In the case at bar the property was assessed as though it had been owned by one William Pearsall, a resident of and taxable inhabitant in New York county. That was error, the only William Pearsall now living having an interest in this property being a resident of the state of New Jersey. It might be claimed, however, that the assessors having jurisdiction over the land, it lying within their county, could by such an assessment as the present create a charge upon the land, although they failed to name either owner or occupant. In support of this position might be cited the act of 1867, providing that no assessment or tax shall be void on account of a mistake in the name of the party to whom it is assessed. I do not think that it applies to a case where there is no person within the county who can be assessed as owner, and where an attempt has been made so to assess the lands. If that were the intention of the statute (that it should be a matter of no importance to whom the lands were assessed, so long as a description of the property appeared on the assessment rolls), there would be no necessity of, or meaning to,'the further section of the statute (re-enacted in the Consolidation Act), providing that it shall be the duty of the board of aider-men (formerly assessors) to make such change in the description of real property belonging to non-residents as may be necessary to render such descriptions conformable to the provisions of law, and if such alterations cannot be made, they must expunge the descriptions of such real property, and the assessments thereon from the assessment rolls ’ (§ 832 Con. Act). It would appear from the foregoing section that the special act for the city of New York contemplated some difference in the assessment of non-resident lands lying in the city and county of New York. And as the special acts relative to the said city and county contain no provision for the assessment of non-resident lands, we must look to the general acts, the provisions of which I have above stated.
    ££ It further appears that tax warrants for the years 1874, 1875, and 1876, were not signed by either the mayor or recorder, as required by the Revised Statutes (vol. 1, p. 1001, [6 ed.]). The signature of Mr. Vance was appended to the warrants. He appears to have been president of the board of aldermen at that time, and, it was claimed, was acting mayor, through the death of Mayor Havemeyer (he was referred to by the witness who testified on this point, as the predecessor of Mayor Wickham). It appears to me impossible that he could have been acting mayor for the space of three years.
    Another objection raised to the validity of the plaintiff’s title was, that the pamphlet required by § 3, chap. 381, Laws of 1871, did not contain a sufficient description of the ownership of the premises in question as required by that act. There was no description of the ownership, further than that in said pamphlet appeared the words, £ to whom assessed, ’ William Pearsall. This would not appear to be a compliance with the act, which requires £ a detailed statement of the ownership of the property taxed/ &c. In fact, it can hardly be considered any description of the ownership, as under the act the property might be assessed to an occupant; and there appears to be nothing upon said pamphlet showing what William Pearsall was in relation to said premises, further than that it had been assessed to him.
    “The affidavit of service of notice to redeem the premises in question seems, certainly, to be defective, in that at the time of the commencement of this action, and the original filing of such affidavit, it contained no certificate by the officer taking the oath that the affiant, Joseph H. Budd, was ‘a credible person.’ It does now contain such a certificate, but it appears to have been appended thereto since the commencement of this action, as Mr. Brewster was sworn, and testified that shortly after the commencement of this action he examined the said affidavit, and no such certificate was then upon it; Mr. Brewster was not contradicted upon this point.
    ‘ ‘ The certificate of the comptroller attached to the lease, as to proof of service and non-redemption, is not under seal. It was stated by plaintiff’s counsel that there appeared at the foot' of said certificate a mark showing that a seal had been there, but had been rubbed off by handling. On examination, however, it will be at once apparent that the mark on the certificate is produced by the seal upon the lease having been, through the folding of the paper, pressed against that place, and not through any other seal having been there.
    ‘c From all the foregoing I am of opinion that the plaintiff has no right to possession of the premises in question under her tax lease in proceedings of this nature, amounting in effect to a forfeiture of property. All steps required by statute must be strictly followed if the plaintiff desires a valid tax lease upon which She could oust the owners of the premises. I am of opinion that it was not done in this case, and that, therefore, the plaintiff cannot recover.”

      The referee reported in conformity with his opinion, and in addition to the facts therein stated, found, among other things, as matter of fact : That the notice to redeem, required by chapter 381, of the act of 1871, which was served upon the defendant, Edward Pearsall, was served upon February 14, 1884; that the lease of the premises, Ho. 19 Ludlow street, from the mayor, aldermen and commonalty of the city of Hew York to Henrietta Franklin, was delivered upon August 20, 1884; and that no notice to redeem the premises in question was served upon William Pearsall, Julia Pearsall, Jane S. Pearsall Clara W. Muirhead and Mary Jenkins.
    Judgment' for defendants against plaintiff was entered in conformity with .the report, from which judgment plaintiff appeals.
    P. & D. Mitchell, attorneys, and of counsel for appellant.

      Q. H. Brewster, attorney, and of counsel for respondents.
   Per Curiam :

The judgment should be affirmed, with costs, upon’the opinion of the referee.

Ingraham, J.

concurred, on the ground that the notice required by § 13 of chapter 381, Laws of 1871 was not served, on the owners of the property, and cited Donahue v. O’Conor, 45 Super. Ct. 278