author: Bosworth, J.

text:
    Towle, Respondent, v. Forney, Appellant.
    An owner of real estate by will devised the same to trustees, and their heirs in fee, as joint tenants and trustees in trust, to receive the rents and profits, and pay the same to T. B. Clarke, during his life, and at and after his death, to convey the same to his lawful issue who should be living at his death, in fee, and if none should be living, then to' convey the same to C. C. Moore, in fee, and died. .
    T. B. Clarke having infant children living, and being unable to support and educate them, and the lands devised being unproductive, held, that the Legislature was competent, on the petition of T. B. Clarke, with the concurrence of the trustees, and the assent of C. C. Moore, to appoint a new trustee in place of ■ those named in the will, with all the powers that conferred on the trustees named in it. Also, to authorize a sale or mortgage by such new trustee, with the assent of the Court of Chancery, of a part of the real estate devised, and an application of so much of the proceeds as might be necessary for the purpose, to pay debts contracted and to be contracted for the necessary support of the petitioner’s family, and the residue of the proceeds to be invested to be disposed of as the land would have been if no sale of it had been made.
    Also to authorize a conveyance of a part or parts of the portion so authorized to be sold or mortgaged, in satisfaction of any debt or debts so contracted, on a valuation to be agreed upon between such trustee and the respective creditors, provided that every such sale and mortgage and conveyance in satisfaction, was approved by a master of the court, and a certificate of such approval was endorsed upon such deed or mortgage.
    Also, that such statutes are not inhibited by the constitutional provision, then in force, which declares, “That no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to the subjects of this state by this constitution, unless by the law of the land or the judgment of his peers,” nor by that clause of the constitution of the United States, which declares, that no state shall pass any law “ impairing the obligation of contracts.”
    That a conveyance by such trustee to a third person, purporting to be upon a pecuniary consideration, having endorsed upon it a certificate of a master in Chancery, made pursuant to an order of the Court of Chancery and in form thus: “ Having examined the within deed, I approve it, as to manner and form. Dec. 14, 1818. James Hamilton, Master in Chancery,” is prima facie valid.
    It appearing that the consideration was the boarding of T. B. Clarke, and his family, by the grantee, and the evidence tending to show that board was furnished and necessary expenses paid, to an amount equal to the value of the land at the time it was conveyed, and that all the accounts between T. B. C. and the grantee were examined by the master, the deed under the circumstances, and after the time that had elapsed, was held valid, although a part of the actual consideration, was board furnished after the deed was executed.
    (Before Doer and Boswokth, J, J.)
    Oct. 14, 1854;
    Jan. 20, 1855.

      This action came before tbe court upon an appeal from a judgment. It was brought to recover two lot® of land, situate in tbe sixteenth ward of tbe city of New York, and was tried before Cb. J. Oakley and a jury, on tbe 26th of March, 1851. Tbe facts of tbe ease are briefly these:
    Mary Clarke, at tbe time of her death, in 1802, was tbe owner in fee of a farm at Chelsea, in tbe city of New York, and of other lands, including a bouse and lot in the fifth ward of that.city. By her will, she devised tbe farm and bouse and lot, and other lands, to Benjamin Moore and wife, and Elizabeth Maunsell, and their heirs, in fee, as joint tenants and trustees, in trust, to receive tbe rents and profits thereof, and pay the same to Thomas B. Clarke, the natural son of her deceased son Clement, during his life, and from and after his death, in trust, to convey the same to his lawful issue who should be living at his death, in fee; and if he should not leave lawful issue living at his death, then, in trust, to convey the same to Clement C. Moore, the grandson of the testatrix, in fee.
    Thomas B. Clarke died on the first day of May, 1826, leaving the following lawful issue, and no others, viz: Catharine H. Clarke, who was born June 5th, 1807, and married to Charles A. Williamson May 10th, 1827; Isabella M. Clarke, who was born June 11th, 1809, and married to Rupert J. Cochran June 4th, 1835, and Bayard Clarke, who was born March 17th, 1815. The trustees named in the will of Mary Clarke are all dead, Mrs. Moore having died since 1830.
    In April, 1814, all the children of Thomas B. Clarke, then in esse, being infants, the legislature, upon his petition, and with the written consent and concurrence of the trustees, and of Clement C. Moore, the contingent remainder-man, passed a law authorizing the Court of Chancery, upon the application of Thomas B. Clarke, to appoint one or more trustees, in the place of the trustees named in the will, to execute the trusts in the will of the testatrix, and the duties specified in that act; which act in terms discharged the former trustees from the trusts in the will mentioned. The act authorized the substituted trustees to divide the farm at Chelsea into two equal parts, one part thereof to be held by them to the uses and upon the trusts • declared in the will of the testatrix, and the other moiety to be subdivided into lots for sale, and wbicb tbej were authorized and directed to sell at a convenient time thereafter, not exceeding six months, except at the request of T. B. Clarke; and also the house and lot in the fifth ward, also mentioned in the will of the testatrix, in such manner and upon such terms as they, or a majority of them, might deem best for the interest of the several parties interested therein, and to make conveyances to the purchasers. And the act declared that such conveyances should operate to convey to the purchasers respectively, all the right, title and interest which the said Mary Clarke had, at the time of her death, in or to the premises.
    The act then directed the trustees to invest the proceeds of the sale, and provided for the distribution of the income during the life of T. B. Clarke, and the payment of the. principal moneys, &c., to the remainder-man at his death. The last section of the act declared, that in every case not otherwise provided for by that act, the trustees appointed by virtue thereof should be deemed and adjudged to be trustees under the will, so far as related to the premises described and mentioned in the act, in like manner as if such trustees had been originally named and appointed in the will, and should in all respects be liable to the power and authority of a Court of Chancery, for or concerning the trusts created by that act.
    Thomas B. Clarke, not having been able to procure any person to accept the appointment of trustee under the act of April, 1814; and 0. C. Moore, the contingent remainder-man, having conveyed all his interests in the premises to Thomas B. Clarke, the legislature, on the 24th of March, 1815, after the birth of the youngest child of T. B. Clarke, upon the application of the said T. B. Clarke, passed another act, vesting the contingent interest of 0. C. Moore, in the proceeds of the property which might be sold,, in T. B. Clarke, and his heirs, and repealing so much of the former act as required a part of the income of the property to be invested :to accumulate, and. so much thereof as required the several duties ■ in that act mentioned to be performed by trustees to be appointed' !by the Court of Chancery. And the act of March, 1815, then .authorized and empowered Thomas B. Clarke to execute andper-iform every act, matter and thing in relation to the real estate 'mentioned in the act of April, 1814, in like manner and with like effect, that trustees duly appointed under the said act, might have dome; and that be should apply the whole of the interest and income of the property to the maintenance and support of his family, and the education of his children. The third section of the act of March, 1815, then declared that no sale of any part of the estate should be made by Thomas B. Clarke until he had procured the assent of the Chancellor of this state to such sale, who should, at the time of giving such assent, also direct the mode in which the proceeds of such sale, or so much thereof as he should think proper, should be vested in the said Thomas B. Clarke, as trustee; and that it should be the duty of the said Thomas B. Clarke annually to render an account to the Chancellor, or to the person appointed by him for that purpose, of the principal of the proceeds of such sale only, the interest being to be applied by the said Thomas B. Clarke in such manner as he might think proper for his use and benefit, and for the education of his children, and that the Chancellor might remove him from his trust if he should be of opinion that the-trustee had not duly performed his trust, by that act reposed in him, and might appoint another in his stead.
    In June, 1815, Thomas B. Clarke applied to Chancellor Kent, under the provisions of the last-mentioned act, for a sale of the half of the Chelsea farm, and the fifth ward house and lot, and that so much of the proceeds thereof as might be required to pay a mortgage on his life estate in the premisses, and some other debts which had been contracted for the support of himself and family, might be applied to the payment of such debts, and the residue of the proceeds vested in him, as such trustee, under the act of the legislature. And on the third day of July, 1815, upon the report of the Master, to whom the application was referred, that the debts had been contracted for the support of the family of the applicant, and that the rente and profits of the trust property were not sufficient for the support of the petitioner and his family, the Chancellor made an order, giving the assent of the Chancellor to a sale by Thomas B. Clarke, the petitioner, of the house and lot in the fifth ward, and the east half of the property at Greenwich, the Chelsea farm; and authorizing the petitioner to sell and dispose of the same under and according to the aforesaid acts of the legislature; the sales to be made under the direction of one of the Masters of the Court, and the petitioner, in making the sales and conveyances of the premises so to be sold, to proceed in the manner for that purpose in and by the said acts prescribed and directed ; and that the purchase moneys for the premises so to be sold, should be paid by the purchasers to the Master, to be disposed of by him as was in the said order directed. The order then authorized, ordered and directed, that so much of the net proceeds arising from the sales as might be necessary for that purpose, be applied, under the direction of the Master, in and for the payment and discharge of the debts then owing by the petitioner, and to be contracted for the necessary purposes of his family, to be proved before the said Master; and the costs, charges and expenses of the petitioner, on his petition in that matter, and the proceedings had, and to be thereafter had, under or in consequence thereof, but that the mortgage upon the property at Greenwich should be first paid out of the proceeds of such sales; the order then directed that the residue of the proceeds of the sales should be placed out at interest upon real property in the city of New York, in the name of the petitioner as trustee, under the direction of a Master of the court, in trust, that the income, or so much thereof as might be required for that purpose, be applied from time to time for the suitable and proper support and maintenance of the petitioner and his wife and children, boro, and to be boro, and for the suitable education of such children. And the principal to be held at the death of the petitioner and disposed of on the same trust as the unsold half of the property was held and to be disposed of.
    The order also directed, that the Master under whose directions the sale should be made, and the debts paid, and the surplus proceeds be placed out at interest, report to the court the proceedings which should be had in the premises, and the securities that might be taken pursuant to the order, with all convenient speed, with liberty to any person interested to apply to the court at any future time for further orders or directions in the premises.
    In March, 1816, the legislature, on the application of Thomas B. Clarke, passed another act, authorizing him, under the orders which had thus been made by the Chancellor, or under any subsequent order, either to mortgage or to sell the premises, which the Chancellor had permitted or might permit him thereafter to sell, as trustee under the will of Mary Clarke, and to apply the money so raised by mortgage or sale to tbe purposes required, or to be required, by tbe Chancellor, under tbe act theretofore passed for tbe relief of tbe said Thomas B. Clarke.
    An order was subsequently made by tbe Chancellor, giving tbe assent of tbe court, as far as it might be required, to mortgage instead of selling. Clarke afterwards applied to the Chancellor for liberty to sell or mortgage tbe southern instead of tbe eastern half of tbe property at Greenwich; and on tbe fifteenth day of March, 1817, upon tbe report of a master, Chancellor Kent, made tbe following order:
    “ On reading and filing tbe report of James A. Hamilton, Esquire, one of tbe masters of tbe court, bearing date tbe eleventh day of March, 1817, by which it appears that no part of tbe northern moiety of tbe estate at Greenwich mentioned in tbe petition of tbe above-named petitioner, tbe same being divided into two equal parts, by a fine running from east to west, through a street called Twenty-sixth street, has been either sold or mortgaged by tbe said Thomas B. Clarke; and it appearing to this court proper and reasonable that the prayer of tbe said petitioner should be granted, it is thereupon ordered, on motion of S. Jones, solicitor for the petitioner, that the said petitioner be, and he is hereby authorized to sell and dispose of the southern moiety of the said estate, the same being divided by a line running east and west through the centre of Twenty-sixth street aforesaid, together with the lot in Broadway, instead of the eastern moiety of the said estate, as permitted and directed by the orders heretofore made in the premises.
    “ And it is further ordered, that the said Thomas B. Clarke be, and he hereby is authorized to mortgage all, or any tract or part of the said southern moiety of the said estate, if in his judgment it will be more beneficial to mortgage them than to sell them.
    “ And the said Thomas B. Clarke is further authorized to convey any part or parts of the said Southern moiety of the said estate in payment and satisfaction of any debt or debts due. and owing from the said Thomas B. Clarke, upon a valuation to be agreed on between him and his respective creditors; provided, nevertheless, that every sale and mortgage, and conveyance in satisfaction that may be made by the said Thomas B. Clarke in virtue hereof, shall be approved by one of the masters of this court, and that a certificate of such approval be endorsed upon every deed or mortgage that may be made in the premises.
    “And it is further ordered, that the said Thomas B. Clarke shall be, and he is hereby authorized to receive and take the moneys arising from the premises, and apply .the same to the payment of his debts,- and invest the surplus in such manner as he may deem' proper to yield an income for the maintenance and support of his family.”
    In October, 1818, under .and by virtue of these several acts of the Legislature and orders of the Court, Thomas B. Clark sold and conveyed to Peter McIntyre, of the' city of Hew York, lot Ho. 118, being the premises in question, together with, other lots. This deed upon its face, was founded upon a money considera: tion of three thousand seven hundred and fifty dollars, paid to the grantor by the grantee, though it also stated that the former was largely indebted to the latter. .
    On the same paper with .this conveyance,-,and forming a part of the same transaction and sale, there was a quit..claim' to the grantee of all the right and title of James A. Hamilton, to the. premises conveyed to McIntyre, the life estate of Clarke having been bid in upon a judgment and execution, and assigned to Hamilton upon a naked trust for Clarke. And the conveyance from Clarke, and the quit claim'endorsed thereon, were both recorded together.
    This sale to McIntyre was under the direction and approval of James A. Hamilton, a Master in Chancery, who. was the same, person who executed the quit claim; and at the same time the said Master endorsed upon the paper .containing, the conveyance . to McIntyre, his approval to such conveyance. Peter McIntyre went immediately into the possession of the premises. He subsequently mortgaged the property to a bond fide mortgagee, who had no . notice of any irregularity, or defect in the title, if: there was any....
    This 'mortgage was subsequently foreclosed, in Chancery,- and: upon the- Master’s sale under the decree, lot Ho. 118, .with other lots,-were struck off to-E.- H. Shepherd,- who purchased them as the agent of-Jeremiah--To.wle, the plaintiff in this action. .. •
    Immediately after -this sale,- the children of Thomas B. Clarke-gave notice to the purchaser of their intention to contest the title, and lie therefore declined taking the title from the Master and paying for the lots. This was in 1844. An application was thereupon made to the Yice-Chancellor of the Eirst Circuit, before whom the foreclosure suit was prosecuted, to compel the purchaser to complete his purchase; and this being after the court of dernier resort, in the case of Cochran v. Van Surhy, (20 Wend. Rep. 865,) had decided that the title under the acts of the Legislature and the orders of Chancellor Kent, was valid, the Yice-Chancellor made an order that the purchaser complete his purchase. Erom this order the purchaser appealed to the Chancellor, who affirmed the decision of the Yice-Chancellor that the title was valid, and that the purchaser must complete his purchase. The purchaser, in obedience to the order of the court, paid the purchase money to the Master, and took his conveyance of these lots.
    At the time the plaintiff’s title to the premises in question was perfected under the said foreclosure suit, and also at the time this action was commenced, the defendant was in possession, under a lease from C. A. Williamson, R. J. Cochran, and Bayard Clarke.
    The testimony as to the consideration of the deed to McIntyre, as viewed by the court, is stated in its opinion. The acts of the Legislature, and the orders of the Court of Chancery, before referred to, are set forth more at large in Clarke v. Surley, 15 Wend. 445, and 20 id. 377, and Williamson v. Perry, 8 How. (U. S.) 507.
    A verdict was rendered in favor of the plaintiff, and a judgment having been entered upon it, the defendant appealed to the General Term.

      D. D. Field, for appellant,
    among other propositions, insisted upon and argued the following, viz
    1. McIntyre acquired no title for the reasons stated in the points which follow:
    2. Under the will of Mary Clarke, the first-born child of Thomas B. Clarke, at its birth, took a vested estate in remainder,which opened to let in his other children to the like estate as they were successively born.
    3. This estate would have become a fee simple, absolute in the children living, on the death of T. B. Clarke.

      4. The acts of the Legislature changed the equitable life estate of Mr. Clarke into a legal estate, but they did not give him. the legal estate in remainder. His power over the remainder of the children was a statutory power; and, like all such powers, to be strictly pursued, and when once executed was exhausted.
    A power is to be strictly pursued, and a statutory power in particular. That was not done in this case, and Mr. Clarke conveyed nothing by his deed.

      5. If, however, Mr. Clarke were to be deemed vested with the legal estate in remainder, he was disabled from alienation, without the consent of the Chancellor.
    6. Mr. Clarke was also disabled from alienation, except for a pure money consideration.
    7. The Chancellor’s. order of March, 1817, did not authorize any conveyance, and least of all a conveyance for such a consideration as this, unless it were approved by a master.
    8. So far as the order sanctioned a conveyance for any other than a money consideration, it was unauthorized by the acts, and therefore beyond the Chancellor’s jurisdiction. Consequently it gave no force to the title.
    In acting under these private statutes, the Chancellor exercised a special and limited jurisdiction, and where he exceeded his jurisdiction his acts were void.
    The proceeding was not by suit between party and party, where an appeal could be had from an erroneous determination.
    In this case the “subject matter” over which the Chancellor' had jurisdiction by these private statutes, was not the'real estate, for then he might have authorized its alienation by another person than Mr. Clarke; nor was it ever alienated by him, for then a mortgage or an exchange might have been authorized under the first act; but it was to determine whether or not the circumstances were such as to justify his assent to a sale or mortgage for cash, and upon a sale or mortgage to superintend the application of the proceeds. When he went beyond this, his act was coram non judice and void.
    There are two fatal errors in the Chancellor’s order of the 17th of March.
    Í. He could not delegate his power to a master at all.
    The authority was personal, and to be exercised by himself. It was not the discretion of a master, but the discretion of the Chancellor that was trusted.
    2. He could not authorize a conveyance in satisfaction of Mr. Clarke’s debts. The statutes gave him no such authority; and if they had, they would have been void, for the Legislature had not power to appropriate one person’s property to the debts of another.
    And even if it were held, that the Chancellor could delegate the power of consenting, and the order were construed to allow a sale without the consent of a master, there would be a further and insurmountable objection to it; that the consent of the Chancellor, either directly ox through a master, could not be dispensed with, according to the letter or spirit of the statutes.
    The Chancellor conferred upon Mr. Clarke no portion of his authority; that came directly from the statutes. The Chancellor could neither give it, nor enlarge it. The lands, if they passed at all, passed by force of the statutes. The Chancellor had no power, except to dissent from the sale; to interpose, his veto. He could not even compel Mr. Clarke to act; he could only say, when he should not act, and if he acted, what should be done with the proceeds of the estate.

      0. O' Conor and Nelson Chase for the respondent.
   By the Cotjet.

Bosworth, J.

The Acts of April 1, 1814, of March 24, 1815, and of March 29, 1816, have been decided, by the court of dernier resort of this State, to be constitutional. The contrary has not been declared by the Supreme Court of the United States.

If it be answered, as was argued at bar, that the question of their constitutionality was not before the Supreme Court of the United States, it may be replied, that the reason why that question was not presented there was, that the District and Circuit Judge concurred in the opinion that the Acts were constitutional. If, as has been assumed, the court of dernier resort of this state has held them to be constitutional and valid, and no court has held the contrary, then their constitutionality cannot properly be treated by this court as an open question, It is its duty to accept and apply the law as it has been settled by the court whose decisions are the supreme law of the state.

In Clarke v. Van Surley, when before the Supreme Court of this state, it was decided that these Acts were not inhibited by the 18th section of the State Constitution then in force, which declares, “ that no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to the subjects of this state by this Constitution unless by the law of the land, or the judgment of his peersnor by that clause of the Constitution of the United States, which declares that no state shall pass any law “impairing the obligation of contracts.” (15 Wend. 445, 446.)

In Cochran v. Van Surley, (being the same case reported in the 15th of Wend.) in the Court for the Correction of Errors, the Chancellor said, “ There is not any contract which has been violated in this case by the Legislature, within the meaning of that clause of the Constitution of the United States, which prohibits the state legislatures Rom passing any laws impairing the obligation of contracts.”

After discussing the validity of certain provisions of the Acts, with reference to contingencies which might have happened, and to the rights of the parties who actually became entitled to interests in the trust estate, he proceeds to say that “ the Act of 1814, therefore, appears to have been a proper exercise of the Legislative power.”

“ And although it may not have been a discreet act of legislation to vest the legal title of the residue of the trust estate of T. B. Clarke, as is done by the operation of-the second section of the Act of 1815, no one can say it would have been an unconstitutional exercise of power, even if his general powers, as trustee for his infant children, had not been expressly restricted by the superintending power and control of the Chancellor, and by requiring the assent of that officer to any sales to be made.” (20 Wend. 377.)

“But it is supposed that the Act of March, 1816, is liable to the constitutional objection that it sanctions the order of the Chancellor, which appropriated the proceeds of the children’s property to pay off the debts of the father, and which were not contracted for their benefit. I cannot perceive, however, that the order is liable to that objection.” (Id. 378.)

Verplanck, Senator, says: “ I concur with, the Supreme Court in- supporting the constitutionality of the Acts under which the sale, now impeached, was made. The first two Acts, certainly and clearly, and the third one upon the face of it, and, as far as natural and obvious construction would carry it, go no further than the exercise of that paternal power over the persons and property of infants, which under the common law was an inherent right of sovereign power, and may be exercised either by general laws, or, under peculiar circumstances, by special legis-' lation.” (Id. 879-380.) “ Under any view of the private Acts in question, I conclude that they were within the constitutional legislative authority; censurable, perhaps, for want of due caution, but not impeachable for usurpation of power.”

The reasons assigned by the courts in support of the conclusions they declared, we neither state nor discuss. It being obvious that the Acts have been directly adjudged to be constitutional by a court, whose decisions we must follow, we have nothing to do with the reasons on which its judgment was founded. (Robertson et al. v. Coulter et al. 16 How. U. S. 106.)

We enter upon the consideration of the remaining questions, with the point decided, that the Acts are constitutional.

By the 2d and 3d sections of the Act of 1815, Clarke was authorized to sell, provided he first procured the assent of the Chancellor to such sale. The third section requires that the Chancellor shall, “ at the time of giving such assent, also direct the mode in which the proceeds of such sale, or so much thereof, as he shall think proper, shall be vested in the said Thomas B. Clarke, as trustee,” Clarke being required to account for the principal only, but not for his disposition of the income. The word principal as here used, probably includes only such part of the proceeds as the Chancellor should direct to be vested in Clarke, as trustee. The Act of 1815 did not require that all of the proceeds should be so vested.

I do not discover that any court has denied the constitutional competency of the Legislature to pass Acts, authorizing the proceeds of the sale to be applied to the necessary support of those entitled to take on the death of Clarke, or to pay debts actually contracted by Clarke for their support, and, what is substantially the same thing, for that of his family, and which he was unable to pay, or the competency of the Chancellor, under the Acts passed to direct such an application of the proceeds, or of some part thereof.

Between the Acts of 1815 and 1816, hut one order of the Chancellor appears to have been made, under the Acts, previous to its date. That order bears date July 3d, 1815. It was founded on a petition to the Chancellor, an order of reference to a master pursuant to the prayer of the petition, and the report of the master named in the order made pursuant to it. The petition, among other things, stated Clarke’s own inability, and the insufficiency of his own resources, and of the income of the property, to provide for the support of himself and his family, and that in order to procure the necessary funds and means, he had been reduced to the necessity of incurring debts, and having recourse to loans, one of which pretended debts was particularly specified. It prayed authority to make a sale, the assent of the Chancellor to it, and a direction that so much of the net proceeds of such sales as may be necessary for the purpose, be appropriated and applied in and for the payment and discharge of the said debts so contracted and incurred by your petitioner (Clarke,) as aforesaid, for the purposes aforesaid, and that the residue of the net proceeds of the said sales be vested in the name of your petitioner as trustee, as aforesaid,” &c.

On the petition reference was made to a master “ to examine into the allegations and matters in the said petition set forth and contained, and to report thereon to this court (the Court of Chancery) with all convenient speed, and that all directions be reserved until the coming in of the said report.”

The Master reported, among other things, “ That the said petitioner is indebted to divers persons in large and considerable amounts, that I have examined his several creditors as to their respective debts, and as far as proof was attainable from said creditors, it appears that the sums by him borrowed, and the debts by him contracted, with the exception of what constitutes part of the said debt due to the Manhattan Company aforesaid, were appropriated to, and incurred by him, for the maintenance of his family, as in said petition is set forth; and when such proof was not to be procured, I have taken the deposition of the said petitioner as to the application of the moneys so borrowed, from which it appears that all such moneys, except as aforesaid, were applied as above stated.”

The Master further reported specific debts contracted as aforesaid, amounting in the aggregate to $5,400 and upwards; and that the rents and profits of the whole property, if unincumbered, could not be made adequate or sufficient for the support of Clarke and his family, and the education of his children, “ even if the whole thereof could be applied thereto; and that the same, after paying thereout the interest of the aforesaid debts of the petitioner, would be insufficient for the reasonable and proper support of the petitioner and his family, according to their situation in life, and would admit of no provision or allowance for the education of the children of the petitioner.”

The order of July 3d, 1815, recites the previous action of the legislature, the petition of Clarke to the Chancellor, the order of reference made upon it, and the report of the Master, and authorizes a sale of the lot in Broadway, and of the eastern moiety of the estate at Greenwich; and directs the proceeds of the sales to be paid and applied, under the direction of a Master of the court, or so much of them as might be necessary for the purpose, “ in and for the payment and discharge of the debts; now owing by the petitioner, and to be contracted for the necessary purposes of his family, to be proved before the said Master,” &c.

It then directed the surplus to be vested in Clarke, as trustee, for those of his children who might survive him, and the mode of such investment.

This was the scope and nature of the order that had been made, when the act of March 29, 1816, was passed. That order expressly provided, that so much of the net proceeds of any sales that might be made, as should be necessary for the purpose, should be applied under the direction of a Master, to pay the ascertained debts previously contracted, and such as should be subsequently incurred for the necessary support of the family of Clarke, on proof being made to the Master that the debts claimed to be, were actually of that character.

The act of March, 1816, authorized a mortgage of all lots, which “ under the order heretofore granted by the Chancellor” had been ordered, or which he might subsequently order to be sold; and it also authorized and directed all moneys raised by sale or mortgage, to be applied “ to the purposes required,” or to be required by the Chancellor, “under the acts heretofore passed for the relief of the said Thomas B. Clarke.”

The purposes, to which moneys arising from a sale, were required to be applied by the Chancellor, “ under the order,” (then) “heretofore granted by” him, were payment and satisfaction of debts incurred and to be incurred, for the necessary maintenance of the family of Clarke, and the education of his children. I cannot see why the order of July 3d, 1815, so far as these parts of it are concerned, is not expressly validated, to such extent, as the legislature was constitutionally competent to do such an act.

The order of May 30, 1816, authorizes a mortgage instead of a sale, of the lots ordered by the order of July 3d, 1815, to be sold.

The order of March 15, 1817, authorized a sale or mortgage of the southern instead of the eastern moiety of the estate at Greenwich. The order concludes thus: “ And the said Thomas B. Clarke, is further authorized to convey any part or parts of the said southern moiety of the said estate, in payment and satisfaction of debts, due and owing, from the said Thomas B. Clarke, upon a valuation to be agreed on between him and his respective creditors; provided, nevertheless, that every sale and mortgage, and conveyance in satisfaction, that may be made by the said Thomas B. Clarke, in virtue hereof, shall be approved by one of the Masters of this court, and that a certificate of such approval be endorsed upon every deed or mortgage, that may be made in the premises. And it is further ordered, that the said Thomas B. Clarke shall be, and he is hereby authorized to receive and take the moneys arising from the premises, and apply the same to the payment of his debts, and invest the surplus in such manner as he may deem proper, to yield an income for the maintenance and support of his family.”

Construing this order in the light of the previous ones, and of the facts, which (as théy recite) appear by the reports of masters of the Court of Chancery, referred to in them, and as designed to effectuate the same purposes and no others, for which they sought to provide, I should construe this order as authorizing a sale in satisfaction of no debts of Clarke, except such as were due and owing, and were incurred for the necessary support of his family. The previous orders sought to provide for no other debts, but did authorize such debts to be paid out of the proceeds of the sale. If the legislature could authorize the land to be sold, and the proceeds applied to pay debts incurred for such purposes, it is difficult to perceive why it might not authorize land worth enough to pay such a debt, to be conveyed in satisfaction of it. In either event, the land would be applied to the same purpose, and if the price in either case was the same, those interested in what might be left of the estate, on the death of Clarke, would be benefited by a conveyance in satisfaction, instead of a public sale, to the extent of the cost of the proceedings of such a sale: The Master was required to approve of a sale and conveyance in satisfaction of such a debt, as a condition to its . validity, for a double purpose. If a sale had been made under the previous ■orders, before he could apply any of the proceeds of the sale, in payment of Clarke’s debts, he must have proof that they were incurred for the necessary support of his family, or the education of his children; If a conveyance was to be made in satisfaction, it was doubtless intended by the Chancellor, that the Master would require, before approving of it, proof that the debt thus to be satisfied, had been incurred for the necessary support of the family of Clarke, and that the amount was just. Another security intended, was, in all probability, that the price to be allowed for the land to be taken in satisfaction, should be the fair value of the property.

By authorizing Clarke to receive the moneys arising from a sale or mortgage, “and apply the same to the payment of his debts,” it was not intended or expected by the Chancellor, that Clarke should be permitted to, or would, apply the same to the payment of any debts, except such as were contracted for the necessary support of his family and the education of his children. The payment of proceeds, to the extent necessary for that purpose, had been authorized by the order of July Bd, 1815; but that and all orders prior to that of March 1817, wisely required a Master of the court to see to such application, after proper proof of the nature and extent of the demand had been given to him. The order should not be construed to authorize an unconstitutional disposition of the property or its proceeds, when there is nothing in its terms requiring such a construction. The confidence, which seems bj the terms of the order to have been reposed in Clarke, subsequent events may have shown, was indiscreet in the highest degree; but neither that, nor his abuse of it, justifies a construction'expressly authorizing a misapplication of the property to pay debts from which his children had not, nor could derive any benefit, when not clearly demanded by the terms of the order.

The Chancellor intending that Clarke should pay with the proceeds only such debts as were incurred for the necessary support and maintenance of his family, and the education of his children, also required that any surplus remaining after satisfying such debts, should be invested “ to yield an income for the maintenance and support of his family.” The “ manner” of investing, the Chancellor, instead of prescribing by the order, left to the discretion of the trustee.

I cannot come to the conclusion that the Chancellor intended by the order of March, 1817, to authorize a conveyance by Clarke in satisfaction of any debt owing by him, except such as his previous orders authorized to be paid from the proceeds of the same property when sold; nor that he intended to confer on Clarke, the authority to pay out of the moneys coming to his own hands, and arising from sales made or mortgages executed, any debts ■ owing by Clarke, except debts of the same character.

Thus construed, it cannot be said, that either order is clearly not authorized by the acts of the legislature. The only objection that can be made to any part of either order in this respect, is that the acts by their terms only authorize a sale ; that this technically imports a transfer for money paid or to be paid, and although it is provided, by reason of the order of July, 1815, being recognized, and by implication at least, confirmed by the act of 1816, that the proceeds of such sales may be applied to pay debts owing by Clarke and contracted for the necessary support of his family, yet they do not provide that any lot may be conveyed diréctly in satisfaction of such a debt, though conveyed on an agreement to accept of it, at as high, or even a higher price than it would have brought if sold for cash, and for the express purpose of paying the same debt. Such an objection would be purely technical, possessing neither practical substance nor merit.

- The deed in question, recites, among other things, an indebted- ' ness from Clarke to Peter McIntyre, the grantee, and purports to have been made in consideration of the premises recited and of $3,750 in hand, paid in cash.

It has endorsed on it, a certificate of a Master in Chancery, in this form, viz:

“ Having examined the within deed, I approve of it, as to manner and form.
“James Hamilton,
Master in Qhaneery.
“Dec. 14, 1818.”

It is objected that this certificate is not such an approval as the order requires as a condition to the deed’s becoming operative and effectual: that in effect it is but an approval of the form of the deed, and not of the sale which it purports to consummate. Conceding, for the sake of the argument, that the order of 1817 requires an approval of a sale, when one is to be made, or of a conveyance in satisfaction, when that is to be given, still it is silent as to the form of the certificate of approval, which it requires to “ be endorsed upon every deed or mortgage, that may be made in the premises.”

If the Master did not intend that the certificate should be one satisfying every requisite of the order, so as to make the transaction and deed valid, so far as their validity depended on the fact of his approval, and of the form of his certificate of such approval, then he intentionally violated his duty, by appearing to approve of that of which he in fact disapproved.

If he had simply certified that he approved of “ the deed,” he would naturally be understood to approve of its being executed;, and of the transaction which it concluded. Especially would! this be so, when it is borne in mind that the certificate was an, official act, and was given in discharge of a duty, making it necessary for him to approve of the sale, which the deed, was merely-an instrument to carry into effect, and that without-such approval the sale would be a nullity.

But it is insisted that the terms of the approval'- preclude the-conclusion, that he approved of the transaction, as it declares thafe he approves of it “ as to manner and form.” Approving of it as-to' “ form,” approves of the form of the deed. What is fairly to be • understood by approving it “ as to manner as well as form?”

The word “ manner” is used in the order requiring his approval as meaning more than the word form.” Clarke is authorized to invest the surplus in such manner as he may deem proper. The word manner,” as there used, relates as well to the nature of the securities in which the investment is to be made, as to the form of the papers to be executed, as evidence of the parties interested in it.

“ Manner and form” is a phrase familiar in legal proceedings. Under the system of pleading in force when the code took effect, the general issue in an action of assumpsit was, “ that the defendant did not undertake or promise in manner and form, as the plaintiff had complained against him,” &c. This allegation did not put in issue the form of the count, but only the substance of the promise, for which reason the plaintiff might give in evidence a contract different from that mentioned, in regard to time or place, when immaterial, though not a contract different in substance. (1 Chit. Plead. 511.)

I think the certificate should be construed to mean that the Master approved of the substance of the transaction of which the deed was the evidence, and which it was designed to effectuate and consummate, as well as of the adaptation of its form, to give full effect to the intent of the parties.

If given solely for the money consideration it recites, it was clearly authorized by the Chancellor’s orders, and by the acts of the Legislature. If its consideration was in part a pre-existing debt owing by Clarke, and that debt was one contracted for the necessary support of Clarke and his family, it was a debt for which a conveyance in satisfaction of it might be made, or which the cash paid for the lot might be used to pay. This trial took place thirty-three years subsequent to the date of the deed. The grantee was called as a witness by the defendant. According to his testimony, the whole consideration named in the deed was made up of money paid to Clarke, and in boarding him and his children. Clarke and one of his sons boarded with him about three years. Two .other of Clarke’s children were there a part of the time. He paid in cash $150 to satisfy a board bill of Clarke’s, two bonds or notes, one of $1,050 or $950, and one for $500 to pay for his youngest children that year,” a bill of $800 for dry goods for children’s clothing, and other bills; that Clarke was in debt to him when he ceased boarding with him. All the settlements between the grantee and Clarke were submitted to Mr. Hamilton, the Master in Chancery, for his approval. The actual consideration, as disclosed by this evidence, was cash actually paid, and boarding Clarke and three of his children, until the cash paid and the value of the board amounted to more than the price contracted to be paid for the lots conveyed. The support of Clarke and his family were purposes for which the orders of the Chancellor, in terms provided, and the orders expressly authorized the proceeds of lands sold to be applied to pay debts thus contracted, and also lands to be conveyed in satisfaction of such debts.

The deed is good on its face, and was executed according to its recitals, upon a consideration, for which one might lawfully be given. It had the certificate requisite to make it prima facie valid. It is not shown that the consideration was of a character that would not, under the acts and orders, support such a deed. On the contrary, it appears that a part of the consideration was paid in cash, and the residue of it may be regarded as a payment in advance of a debt contracted for the boarding of Clarke and his family, and the board was furnished to the full amount of the price not covered by the cash actually paid.

I do not think there is any such evidence, that the consideration was not what it purports to be, or that it was not of the character required by the acts and orders, as authorizes us to hold it absolutely void.

On the grounds on which the title derived from a purchaser, from Clarke, was held valid, in Cochran v. Van Surley, irrespective of the views I have stated, that acquired by the plaintiff, entitles him to the judgment of the court.

In the case of Cochran v. Van Surley, the only opinion furnished by any one dissenting from the conclusions reached by a majority of the members of the court, places the dissent “on the single ground, that the sale and conveyance by Clarke, not having been approved by a Master until years after his death, when the title had passed to the present plaintiffs, were void and inoperative.”

We do not feel at liberty to say, that the court of last resort, •when this case comes before it, will overrule the decision made in Cochran v. Van Surley.

In Williamson v. Berry, 8 How. U. S. S. C. R. 507, the consideration of the deed, under which the defendant claimed title, was proved to have been an amount due De Grasse for oysters, furnished by him to Clarke, out of an oyster shop, which the former kept: some wild lands in' Pennsylvania or Virginia, and some items of money lent, and the Master actually refused to approve of the deéd, on account of such being its consideration. (Id. p. 539.)

That deed might well be void, and yet this be valid.

In Williamson v. The Irish Presbyterian Congregation in the City of New York, id. p. 565, the report of the case states, that the same facts, and principles were involved, as in the suit against Berry, the only point of difference stated, not being pertinent to the question of the actual consideration of the deed from Clarke, under which the defendants, in the latter suit, made title.

In Williamson v. Ball, 8 id. 566, the conveyance from Clarke was made to one Abbott Christie, and recited that Clarke was justly indebted to‘Christie, “in the sum of $525, and is willing to convey in satisfaction of such debt, the premises hereinafter mentioned and described,” and declares that “ in consideration of the premises, and of $525, in hand, paid,” he conveys, &c. That deed was approved by the same Master who approved the one in question.

The court, in its opinion, treated the deed as one executed in satisfaction of the debt owing by Clarke to Christie, of $525.

That court said, To the third point in this case, we rule, that the Chancellor had authority, under the acts passed for the relief of Thomas B. Clarke, to assent to a conveyance of the premises in dispute by his trustee, but that it was not within the jurisdiction given to the Chancellor by the acts of the State of New York, mentioned in this case, to order that the trustees might make a conveyance of any part of the premises devised, as is mentioned in the ease for a precedent debt due by the trustee to his grantee.” (Id. 568.)

That was therefore treated as .a deed given in satisfaction of a precedent debt owing by the trustee, and not appearing, even from its recitals, to Raye been contracted for tbe necessary support of Clarke and bis family. Tbe deed before ns, does not, in terms, declare tbat it was given, even in part, in satisfaction of any previous debt of tbe trustee, and tbe proof of tbe actual consideration does not tend to prove tbat sucb was tbe fact.

■ Tbe Supreme Court of tbe United States, in tbe opinion of tbe majority of tbe court, say, citing tbe language of Senator Yer-plancb, tbat Tbe order made under tbe first two acts was in contravention of tbe statute, so far as it allowed a part of tbe proceeds of tbe sale to be applied to tbe payment of Clarke’s former debts. Nor do I tbink tbat tbe words in tbe act of 1816, ratified tbe former orders, or extended tbe Chancellor's powers in future orders, as to tbe liberty of applying tbe principal of tbe funds, of wbicb, according to tbe acts heretofore on this subject, tbe interest only was to be expended.” (8 How. U. S. S. C. R. 540.)

But tbe words in tbe act of 1816, do state, tbat Clarke is hereby authorized, under tbe order heretofore granted by tbe Chancellor,” to. mortgage or sell, &c., and “ to apply tbe money so raised by mortgage or sale, to tbe purposes required, or to be required by tbe Chancellor, under tbe acts heretofore passed for tbe relief of tbe said Thomas B. Clarke.”

Tbe order of July 3d, 1815, peremptorily required, so much of tbe moneys arising from a sale, as should be necessary for tbe purpose, to be applied to pay certain debts proved to have been incurred by Clarke, for tbe “ necessary purposes of bis family,” and tbe moneys arising from wbicb, be was proved to have applied to tbe support of bis family; and also to pay debts “ to be contracted for tbe necessary purposes of bis family, to be proved before tbe said Master.”

Bronson, J., in Clarke v. Van Surley, 15 Wend. 446, says, “ tbat the Chancellor, by tbe order of tbe 3d of July, 1815, bad evidently construed tbe previous acts as conferring authority to reach tbe principal as well as tbe interest, and it is probable tbat tbe act of 1816 was intended, among other things, to sanction tbe view tbe Chancellor bad taken of tbe question.” * * * Tbe greatest difficulty in upholding tbe orders of tbe Chancellor arises from tbe fact, that they allow Clarke to apply a part of tbe proceeds to pay bis debts. If tbe debts to be paid were only sucb as be had incurred in tbe necessary support and education of bis children, there was nothing very objectionable in the provision: and perhaps that is the reasonable interpretation of the orders,” &c. * * * “ By the order of the 15th of March, 1817, Clarke was authorized to convey the. property in payment and satisfaction of any debt or debts due and owing from him, and he was further authorized to take the moneys arising from sales or mortgages, and apply the same to the payment of' his debts,” <&c.. “This order, however,- referred to the previous one of July 3d, 1815, and should probably be understood to mean only such debts of Clarke as-had been contracted for the necessary support of his' family.” (Id. 447.)

The Supreme Court of the United States has-not-decided,.that the acts and order, did not confer valid authority to make a sale' and conveyance, the consideration of which was, in part, a payment of a debt contracted for such a purpose, and as to the residue of it, money. No such question was before.it. -

In the case before us, the deed-recites a money consideration. It does not, in terms,- declare that satisfaction of -any precedent debt owing by Clarke to McIntyre, formed any part of the consideration. It recites the fact, that Clarke was then indebted to McIntyre, but no amount is stated, nor does the deed affirm that it is executed to satisfy any part of such debt.

There is nothing in the testimony of McIntyre, tending to show that the consideration was not, exclusively, cash paid, and board furnished to Clarke and three of his children. On such a state of facts, and in an action of ejectment,-brought by a bonâ fide purchaser, I do not think this court is justified in holding that the deed to McIntyre is clearly void, and that the title under which the plaintiff claims, is clearly and utterly invalid.

All the children of Clarke who survived him, were in being before' .any sales were made, or mortgages executed, "under the order of March 15, 1817. Bayard -Clarke, the youngest of the surviving children, was born on the 17th of March, 1817.

Although the fact, that the order of the Vice-Chancellor, requiring Shepherd to. complete the purchase which he had made. on the plaintiff’s account,-was affirmed by the Chancellor, on appeal, on the ground that the title was good, cannot affect the rights of the real defendants in this action, they not having been parties-to those proceedings; yet thé fact that such orders were made, should not make the court less cautious in coming to the conclusion, that the plaintiff’s title cannot be upheld.

In whatever manner the court of last resort of this state has construed, or may construe these statutes, the Supreme Court of the United States is as much bound as this court to accept and follow that construction, in deciding questions arising under them, unless the statutes as thus construed, shall be deemed open to the objection that they impair the obligation of contracts, or are for other reasons, as thus construed, liable to be adjudged by that court null and void. (Robertson, et al. v. Coulter et al. 16 How. U. S. 106.)

We think the judgment appealed from should be affirmed.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    William G. Tuller and others v. John H. Davis and others.
    The complaint alleged that the defendants agreed to let to the plaintiffs the first floor and basement in a building then.in the course of erection, and known as No. 91 Liberty street, and to finish the premises in the same manner as the store then oeeupied by A. E. Eno, in the same street. The complaint then averred that the said premises were not so finished, but that owing to the bad construction of the roof upon the building, the water therefrom fell down into the said first floor and basement, and greatly damaged the silks, goods, <fcc., of the plaintiff’s kept therein. The defendants demurred, upon the ground that the facts set forth were not sufficient to constitute a cause of action.

      Held, that the facts set forth showed sufficiently a breach of the defendants’ covenant, entitling the plaintiffs to a recovery of damages.
    Judgment for plaintiffs upon demurrer.
    (Before Oakley, Ch. X, Duek and Campbell, J.X)
    Dec. 12, 1854;
    January 13, 1855.
    Appeal from a judgment for tbe defendants upon a demurrer to tbe complaint.
    The complaint is in these words:
    Tbe plaintiffs in this action complain of tbe defendants herein, and state and show to tbe court, that they, the said plaintiffs, were, on the 10th day of November, 1852, and still are copart-ners doing business in the city of New York, in the name, firm and style of Tuller, Hutchins & Lassell, and that on the same day and year aforesaid, the said defendants were and still are copartners, doing business in tbe firm name of Davis, Byrne, Johnson & Hance; and that on the day and year aforesaid, the said plaintiffs, as such copartners, entered into an agreement, in ■writing, with the said defendants, bearing date the same day and year aforesaid, duly executed by the respective parties, in their said copartnership name, which said agreement is substantially as follows: — “Memorandum of agreement made this tenth day of November, eighteen hundred and fifty-two, between Dayis, Byrne, Johnson & Hance, of the first part, and Tuller, Hutchins & Lassell, of the second part, witnesseth: that the said parties of the first part have agreed to let, and the said parties of the second part have agreed to hire, the premises known as the first floor and básement of number ninety-one (91) Liberty street, in the city of New York, upon the following terms and conditions, viz: the building now being erected upon said premises is to be finished, and possession thereof given by said parties of the first part, on the first day of January, eighteen hundred and fifty-three, provided that in the event of the premises not being fully completed by the time specified, viz: the first day of January, 1858, the said parties of the first part using all due diligence to secure the completion of said premises, that the said parties of the second part are not to pay any rent whatever until said premises are fully completed, as in said agreement hereinafter specified, the said premises and fixtures to be finished in the same manner as the store now occupied by Amos R. Eno, in the same street, and in addition thereto, the parties of the first part are to furnish shelving to the amount of five hundred dollars. On or before the first day of January, 1853, the parties of the first part are to execute a lease (to contain the customary conditions) of said premises to the parties of the second part, for the term of three years, at. the yearly rate of three thousand five hundred dollars, to be paid on the-usual quarter-days, which lease the parties of the second part agree to accept, it being understood, however, that there shall be no condition inserted in said lease to prevent the said parties of the second part from underletting said premises if they desire so to do, provided that the said parties of the second part shall not underlet said premises for any other business than for the fancy silk or dry goods business, unless by the written consent of the said parties of the first part. In consideration whereof, and of one dollar by each of the said parties to this agreement, to the other paid, they bind themselves, their heirs, executors and administrators, each to the other, to the full and faithful performance of this agreement. In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, the day and year first above written.” And the said plaintiffs aver, that after the making of the said agreement, and on or about the first day of February, 1853, the said defendants delivered, and the said plaintiffs took possession of the said first floor and basement of the said building, number 91 Liberty street, under and in pursuance of said agreement, no lease or other agreement having been made or executed between the said parties; and that they the said plaintiffs, took possession thereof upon the faith and assurance of the said defendants, and the full belief thereof, that the said premises were finished in the same manner as the store then occupied by Amos R. Eno, in the same street, and in .accordance with the terms of said agreement. And the said plaintiffs further aver, that the said premises were not finished in the same manner as the store, then (at the time of making such agreement) occupied by Amos R. Eno, in the same street, but on the contrary thereof, the roof of the said building, and the gutters, water-courses and leaders therefrom were finished and constructed in a different and less perfect manner than those upon the store then occupied by the said Amos R. Eno, in the same street, and an obstruction was placed over the top of the leader that conducted the water from the said roof of said building, which obstructed and prevented the water from passing off from said roof, whereas no such obstruction was placed over the top of the leader, or gutter, or water-course from the roof of the store then occupied by said Amos’ R. Eno, in the same street; and in consequence thereof, the water falling upon the roof of said building, mentioned in said agreement, was obstructed and prevented from passing off through the gutters, water-courses or leader, and was forced back upon, and run through the skylight in the roofj and down into the said first floor and basement, and upon the silks, goods and wares, and merchandize of the said plaintiffs kept therein, and greatly damaged the same. And the plaintiffs aver, that they thereby sustained damages to the amount of four thousand dollars, and wholly in 'consequence of the said building, and the roof thereof, and the gutters, water-courses- and leader therefrom, being finished in a manner different from and less perfect than the store then occupied by the said Amos R. Eno, in the same street. Wherefore, the said plaintiffs demand judgment against the said defendants, for four thousand dollars, and interest from the first day of July, 1853, with costs of this action.
    The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action. It was allowed at Special Term, and judgment thereon rendered for the defendants, with costs.

      W. Clark, for the plaintiffs,
    now moved for a reversal of the judgment, and insisted,
    That by the agreement between the parties, the defendants were bound to finish the entire building in the same manner as the store of Amos R. Eno, in the same' street, was finished; and that the terms “ premises and fixtures," as they are used in the agreement, include the roof, gutters, &c.
    That to construe the agreement as extending only to the first floor and basement, was contrary to the plain and manifest intention of the parties as collected from the whole instrument. And that moving into and taking possession of the premises, did not preclude the plaintiffs from setting up a claim that the premises were not finished in accordance with the agreement.

      W. Hutchins, for the defendants,
    argued as follows:
    The plaintiffs have agreed to hire the premises known as the first floor and basement of Ho. 91 Liberty street, in the city of Hew York, and the defendants have covenanted “ that the said premises and fixtures shall be finished in the same manner as the store now occupied by Amos R. Eno, in the same street,” &c. The agreement, therefore, as set forth in the complaint, provides that the premises hired by the plaintiffs were to be finished in the same manner as such premises in the store occupied by Amos Eno, in the same street, were finished. The premises hired by them being the first floor and basement; there was no obligation incurred by the defendants to finish any other portion of the premises in the same manner as the store occupied by Eno than that portion which from the agreement it appears the plaintiffs hired of the defendants, and there being no allegation that the defendants are liable for negligence or otherwise, and no allegation that the premises hired by them were not finished in the same manner as the store occupied by Eno, in the same street; the complaint does not state facts sufficient to constitute a cause of action, and should therefore be dismissed.
    And we further insist that the parties, subsequent to the making of the agreement, having accepted the premises, moved in and taken possession thereof, are now precluded from setting up a claim that the premises were not finished in accordance with the terms and conditions of the agreement.
   By the Court.

Campbell, J.

The construction which the counsel in support of the demurrer have given to the covenant of the defendants may be literally and grammatically correct, but it is manifest to us that its adoption would defeat the true intentions of the parties, as fairly to be collected from their whole agreement, and we, therefore, cannot adopt it. According to this construction, if the defendants had finished the first floor and basement, which they let, in the same manner as the first floor and basement in the budding of Mr. Eno, leaving the rest of the building incomplete, without any roof at all, they would have performed their covenant, and entitled themselves to demand the whole of the large rent which the plaintiffs stipulated to pay; and this, although the premises let, from the want of a roof, would have been so open to the weather, so exposed to winds and rains, that they could not have been occupied at all for the purpose for which they were hired. We cannot hesitate to reject a construction that would lead to such consequences.

It may be that the defendants were not bound to finish the entire building so as to make it correspond in all respects with the building of Mr. Eno, but they were bound so to finish the first floor and basement which they let to the plaintiff, as to render them just as tenantable, just as fit in all respects for the purposes for which they were hired as the same compartments in the building of Eno, and if this could not be done, without putting a roof upon the building, similar to that on the building of Eno, it was such a roof that they were bound to construct. Hence, if from the want of such a roof the plaintiffs have sus-tamed tbe damages of wbicb they complain, we cannot doubt, tbat tbe complaint sets forth causes of action that, if proved, will entitle them to recover.

Tbe objection tbat tbe plaintiffs have waived any claim for damages by entering into tbe possession of tbe premises demised, we think is folly answered by tbe averment in tbe complaint, tbat they entered into possession in tbe full belief tbat tbe premises were finished in conformity to tbe agreement of tbe defendants.

Tbe judgment for tbe defendants is reversed, and judgment upon tbe demurrer must be entered for tbe plaintiffs, with costs, but with liberty to tbe defendants to withdraw tbe demurrer, and put in an answer within tbe usual time and upon tbe usual terms.


author: Duer, J.

text:
    The New York Life Insurance Company v. The Supervisors of the City and County of New York, the Receiver of Taxes, &c.
    A Court of Equity has no power to restrain by an injunction, the proceedings of a subordinate tribunal of special jurisdiction, upon the ground that it has exceeded, or threatens to exceed, its powers as defined by law. The equitable jurisdiction of the courts in this state is not enlarged by their present union of legal and equitable powers.
    Nor has it been enlarged by any of the provisions of the Code. Hence, when a perpetnal injunction is the relief demanded by the complaint, the right of the plaintiff to such relief must still be determined by the rules of law that were in force when the Code was enacted.

      Reid, that the court had no power to restrain the supervisors, <&c., from collecting a tax on the capital stock of the plaintiffs, on the ground that the capital was rated at a larger sum than was fixed by statute.

      Reid, therefore, that a demurrer to the complaint was well taken, and the defendants entitled to judgment.
    (Before Oakley, Ch. J., Doer and Campbell, J.J.)
    Dec. 13, 1854;
    Jan. 13, 1855.
    Appeal by tbe defendants from a judgment for tbe plaintiffs, upon a demurrer to tbe complaint.
    Tbe complaint, after stating tbat tbe plaintiffs were a body corporate by tbe name of “Tbe New York Life Insurance Company,” and referring specially to the several acts of tbe ¿Legislature by which they were so enacted, proceeds as follows:
    And the plaintiffs further show, that their office and principal place of business is in the First Ward of the City of New York. And that by an act of the Legislature of this state, entitled, “An Act' to amend the General Law relative to the incorporation of Insurance Companies,” passed June 29, 1853, it is enacted, that any mutual life insurance company in this state incorporated previously to the passage of the General Insurance Law, on the tenth of April, 1849, shalTbe subject to taxation in the same manner as if it were incorporated under the said general law, with a capital of one hundred thousand dollars, as required by the sixth section of the said general law.
    And the plaintiffs further show, that they are informed and believe that the assessors for the First Ward of the said city of New York, in the year 1853, made an assessment of the personal property of the plaintiffs, in and by which they estimated it to be of the value of two hundred and fifty thousand dollars, and delivered the assessment roll, containing such assessment among others, to the tax commissioners of the said city, some time in the month of April, 1853. And the plaintiffs ferther show, on like information and belief, that the said tax commissioners some time in the month of June, 1853, delivered the said roll to the Comptroller of the City of New York; and that the said Comptroller delivered the said roll to the defendants, the Board of Supervisors of said city, at a meeting thereof, on or about the 13th day of July, 1853.
    And the plaintiffs further show, on like information and belief, that the said Board of Supervisors, after they became possessed of the said roll, proceeded to estimate and set down in a fifth column, prepared for that purpose, in the said assessment roll, opposite to the said assessment, so made of the personal property of the said plaintiffs, the sum of $3,085.67, as a tax, to be paid by the plaintiffs on the said sum of two hundred and fifty thousand dollars.
    And the plaintiffs further show, on like information and belief, that the said Board of Supervisors did not make the said estimate, and set down the said tax in the fifth column of the assessment roll, until after the 19th day of July, 1853.

      , And tbat tbe said Board of Supervisors did not correct and finally complete tbe said assessment roll until on and about the first day of August, 1853. And that tbe said Board of Supervisors, when tbe said assessment roll was corrected and finally completed by them, caused the samé, or a fair copy thereof, with a warrant under their bands and seals, or the hands and seals of five or more of them, on or about the first day of August, 1853, to be delivered to the defendant Harvey Hart, the receiver of taxes in and for the said city, by which warrant the said Receiver is commanded to collect from the plaintiffs the said sum of $3,085⅛70) being a tax upon the said sum of $250,000.
    And the plaintiffs further show, that'they received a notice from the office of the said Receiver of Taxes, that they were taxed on their personal property, valued at $250,000, the sum of $3,085AV &r the year 1853.
    ' And the plaintiffs further show, that on the 18th day of February, 1854, they dispatched William H. Beers with money for such purpose, to offer and tender to pay to the said Receiver of Taxes, the taxes for the year 1853, upon personal property of the plaintiffs of $100,000, at the rate estimated by the said. Board of Supervisors, for taxes on the value of property for that year, together with interest thereon at the rate of twelve per cent, per annum, from the first day of August, 1853, to the said 18th day of February, amounting to $1,320⅛\. And they are informed and believe, that the said William H. Beers did, on said 18th day of February, 1854, on behalf of the plaintiffs, make such offer and tender. But that the said Receiver declined and refused to receive such amount, and demanded the full tax upon $250,000, and the interest thereon, amounting in all to the sum of $3,2901⅞⅛, and would accept no less sum from the said plaintiffs, in discharge of the said tax upon their personal property as aforesaid.
    And the plaintiffs further show, that they are willing to pay the said Receiver of Taxes the said sum of $1,320 ⅜⅜, in discharge of their taxes for the year 1853, whenever he is willing to receive the same, which they hereby offer to do, or to'pay the same into court to the credit of the said Receiver of Taxes, and the plaintiffs further show, that the said Receiver of Taxes replied in writing to the said plaintiffs’ offer to pay, and therein informed the plaintiffs that a wairant had been issued to collect said tax from the plaintiffs, and they believe that efforts will be made to enforce said warrant against the plaintiffs, unless restrained by this honorable court.
    Wherefore, the plaintiffs demand the judgment of this court, declaring that the plaintiffs are not liable to pay any tax for the year 1853, on any greater value of personal property belonging to the plaintiffs, than the sum of $100,000, which they submit to pay as aforesaid. And they farther pray, that the said Board of Supervisors, and Harvey Hart, the said Receiver of Taxes, their agents, attorneys, and all and every other person or persons acting or assuming, or pretending to act, under or by virtue of power or authority obtained or derived from them, or either of them, may be restrained by injunction or order of this court, from collecting, or attempting to collect, from the plaintiffs, in any manner or form whatsoever, any greater amount for the tax of 1853, than the amount which at the rate estimated by the said Board of Supervisors as set down in the said roll, would be the proper tax to be paid on an assessment of personal property of the value of $100,000, together with interest on such tax at the rate of twelve per cent, per annum, from the first day- of August, 1853, up to the eighteenth day of February, 1854, and that the plaintiffs may be paid their costs of this action, and such other relief, or further relief or judgment, as the nature of the case may require.
    The defendants demurred upon the grounds that the court has no jurisdiction of the subject of the-action, and that the complaint did not state facts sufficient to constitute a cause of action. The cause upon these issues of law was tried at a Special Term, before Hoffman, J., on the 10th April, 1854.
    On the 20th April, Mr. Justice Hoffman delivered an elaborate judgment, in which, after a careful and critical examination of the several acts of the Legislature bearing upon-the questions to be decided, he arrived at the conclusion that the plaintiffs upon the merits were entitled to the relief demanded. Upon the ques-tion_of jurisdiction the learned Judge, after a reference to prior decisions and authorities, expressed himself as follows: -
    “It is difficult, perhaps impossible, to resist' these authorities; and if there was nothing in the Code to excuse an implicit submission to them, I should allow the demurrer at once. But the new system does, I think, warrant me in saying that a doubt may exist upon the question yet. The same court now administers the law upon all the united principles of equity and law. If this case was before me upon an action to recover back the money paid under legal compulsion, or upon an action against an officer for seizing property upon process to enforce the tax, I should decide that the money should be restored. The Judges at General Term, if they agreed in the opinion as to the law,-would order such repayment. It does seem difficult to reconcile it to common sense to say, why the party aggrieved by an error in law, may not in the same court, on the same facts, be protected from paying money, as well as entitled to recover it when paid.
    “ The case of Gardner v. Nee’s Bank, (11 Barbour; 567,) and some other cases, are hostile in principle to this view. The view of Justice Edmonds, in Cure v. Crawford, (1 Code E. 18,) favors it.
    “It is a question not so fully decided by the judgment of the General Term of this court, or by that of any higher authority, as to preclude me from acting upon an inclination of opinion, and nothing more, that an injunction may in this case be sustained. I shall be glad if the subject is brought before the General Term for a deliberate" consideration which may govern ourselves at least, upon a point of signal importance, and far reaching consequences.
    “ The demurrer will be overruled,-and judgment entered for the plaintiffs without costs.”
    The cause was now fully argued upon all the questions decided in the court below, but the arguments upon the merits are omitted, the question as to the jurisdiction of the court, being the only question determined on this appeal.

      B. J. Dillon, for the defendants, appellants,
    upon the question of jurisdiction, argued as follows:
    This court has no jurisdiction to set aside and annul the proceedings of subordinate tribunals, like the Board of Supervisors, by original suit and injunction, particularly in the case in which there is no allegation that the assessment is a cloud upon title, or will-produce a multiplicity of suits or irreparable injury. (Mooers v. Smedley, 6 J. 0. E. 28 ; Livingston v. Wollenieck, 4 Barbour, 9-16 ; Van Bensselaer v. Kidd, 4 id. 19 ; Mayor v. Mese-role, 26 Wend. 132; Wiggin v. Mayor, 9 Paige, 16-24; Van

      Doren y. Mayor, 9 id. 288 ; Benton v. Brooklyn, 7 Howard^ 205; Douglas v. Mayor, Duer, J.; Society Library v. Mayor, Emmet J.; v. Mayor, Roosevelt, J.; Wilson v. Mayor, Woodruff, J. 0. P.)
    The jurisdiction has not been extended by the Code. The right to an injunction depends not only upon the commission of an act, injurious to the plaintiff, * but also upon the question whether he will be finally entitled to the relief demanded. (Hart v. Mayor, 9 Wend. 570 ; Livingston v. Livingston, 6 J. C. R. 497; Jerome v. Boss, 1 3. C. R., 315; Dangstone v. Hudson B. B. Co., 3 Code Rep. 143 ; Woodworth v. Lyon, 1 Code Rep. N. S. 163.)
    The assessors of the First Ward having jurisdiction of the plaintiffs, their assessment and the action of the Board of Supervisors are judicial acts, binding and conclusive until reversed. They cannot be reviewed collaterally. The remedy is by certiorari. (Van Bensselaer v. Cottrell, 7 Barbour, 127; Osborne v. Danvers, 7 Pick. 93; Weaver v. Deffendorf, 3 Denio, 117; Prosser v. Secor, 5 Barb. 607; Chegaray v. Jenkins, 2 Selden, 381; Thomas v. Mayor, Roosevelt, J.; Trinity Church v. Mayor, Roosevelt, J.)

      J. Miller for the plaintiffs, respondents:
    An injunction issues, “ where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the plaintiff.” (Code of 1852, sec. 219.)
    The Superior Court has jurisdiction of the action. “ An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement of á right, the redress or prevention of a wrong.” (Code 1852, sec. 2.)
    The Superior Court has jurisdiction: 1. Of all actions enumerated in sections 123 and 124 of the Code, when the cause of action shall have arisen, or the subject matter of the action shall be situate within the city of New York. (Id. § 33, sub. 1.) 2. All other actions where all the defendants reside in, or are personally served with the summons in the city of New York. (Id., sub. 2.)
    Section 124, sub. 2, embraces actions against a public ofiicer for acts done by virtue of his office.
    The plaintiff-in this action does not seek to correct the assessment roll, or control tbe action of the Board of Supervisors in regard to a matter depending upon tbeir judgment or discretion. But to prevent further action upon acts done by them without" jurisdiction, in violation of an express law* and in regard to which no judgment or discretion whatever was vested in the Supervisors. Even if tbe imposition of taxes is of the gravity of a record, yet this court will interfere by injunction to stay execution to collect more than by law the respondent ought to pay. {Marine Ins. Co. v. Hodgson, 7 Cranch, 332; Truly v. Wanzer, Sc., 5 Howard U. S. 141.)
   ' By the Couet.

Duer, J.

Although the question of our jurisdiction is not the only question that we have considered, it' is the only one of those that have been argued that we shall now determine, and the question properly stated is this, whether we have any power as a Court of Equity, to restrain by a perpetual injunction, the collection- of the tax which it is alleged has been illegally imposed upon the plaintiffs?

It is true that in several of our reported cases the jurisdiction now questioned has been exercised by this court, but in Bond v. The Mayor, &o., (2 Sand. S. C. R. 552,) in the Sun Mutual Insurance Company v. The same, (5 Sand. 10,) and in Bartlett v. The same, (5 Sand. 44,) the question was not raised at all, either by the pleadings or upon the argument, and in the case of Douglas v. The same, (1 Duer, 110,) although the question was raised at Special Term, and the complaint then dismissed upon the sole ground of the want of jurisdiction, yet upon the appeal to the Greneral T$rm, the objection was expressly waived, and by the request of the parties, the cause was heard and decided upon the merits alone. ' The question, therefore, so far as this court is concerned, is entirely open.

If we are to be governed by the law as it existed and was administered before the Code, it really seems to us that the proper determination of the question is • free from a reasonable doubt. Either the decision of Chancellor Kent in Mooers v. Smedly, (6 John. Ch. R. p. 28,) of Chancellor Walworth, in Wiggin v. The Mayor, (9 Paige, 16,) and in Van Doren v. The same, (9 Paige, 368,) and emphatically that of the Court of Errors, in Meserole v. The Mayor, &c., of Brooklyn, (26 Wend. 132,) must be wholly disregarded, or it must be admitted that they established the law, that a Court of Equity has no power to restrain by an injunction, or ' to set aside, the proceedings of a subordinate tribunal of special jurisdiction, upon the ground that it has threatened to exceed, or has exceeded its authority and powers as defined by law, but that the proper remedy of an aggrieved party, in all such cases, must be sought in a court of law. There may formerly have been, and may still be, some exceptions from this general rule, as where the effect of the proceedings sought to be restrained or annulled, would be to cast a cloud upon a title to real estate, or * where the interposition of the court is plainly necessary-taprévenj^ a multiplicity of suite, but it cannot be said, nor has it been ¡pretended, that tEe present case falls within any of the exceptions that have been supposed to exist. Hence, unless the Code has altered the law, and greatly enlarged the powers and duties of a Court of Equity, we must hold, that this demurrer is well taken, and that the complaint must be dismissed. "

Upon the fullest reflection, we find ourselves unable to agree in the opinion, that any such alteration of the law has been effected, or was designed to be effected by the Code. We cannot adopt the suggestion, for it is rather a suggestion than an opinion of our learned brother, by whom this demurrer was overruled, that this very important alteration of the law has resulted from the union in the same court of legal and equitable powers. It by no means follows that the bounds by which these powers have hitherto been separated, have been' effaced or altered, because the exercise of the powers has been confided to the same tribunal, and if any such consequence was intended by the Legislature, it is plain, that from its nature and importance it ought to have been, and we cannot but think, would have been explicitly declared. It is not an intention that we should have been left to gather by inference and conjecture, nor, as it seems to us, an intention that we can be justified in attempting to collect by any doubtful process of reasoning. We cannot, therefore say, that we have power to grant to an aggrieved party a relief purely equitable in its' character, in any case in which it is eertain that before the adoption of the . Code, his only remedy was by a proceeding or action at law. We cannot believe that we may now substitute .an injunction for a certiorari, mandamus, or prohibition, or an aetion of trespass or assumpsit. It may be true, that if tbe plaintiffs shall be compelled to pay tbe tax of which they complain, they will be entitled to recover it back in an action at law, but we dare not go the length of saying that because the tax, if collected, will be recoverable, we have any right to prohibit its collection. "We cannot adopt a mode of reasoning that would land us in the conclusion that the counsel for the plaintiffs so earnestly pressed upon us, namely: that under the Code every wrong may be prevented by an injunction, that when committed may be redressed by an action. In other words, that we possess the same jurisdiction as a Court of Equity that we possess as a Court of Law, the only difference being not in the right to seek relief, but merely in the form of granting it; a doctrine which really means that the power of granting injunctions is subject to no restriction or limitation whatever; and which it, therefore, seems to us, needs no other refutation than its naked statement.

Eor ourselves, we must adhere to that construction of the Code which hitherto we have uniformly followed; and in some previous eases, have expressly declared, namely, that the Code has not enlarged or altered, in any respect, the power of the court to grant injunctions,in those cases,in which a permanent injunction is the relief demanded by the complaint, but that, in such cases, the right of the plaintiff to such relief, must still be determined by the rules of law that were in force when the Code was enacted. (Newstadt v. Joel, 1 Duer, 530.)

Adopting this construction, it is a necessary conclusion that the demurrer to this complaint ought to have been allowed. The judgment for the plaintiffs must, therefore, be reversed, and a judgment dismissing the complaint be entered for the defendants. We have to thank the counsel for the defendants for the MS. copy that he has furnished of the opinion of Mr. Justice Woodruff in a case, in all its material facts, not distinguishable from the present, (Wilson v. the Mayor, &c., of New York.) The opinion is certainly the ablest and frdlest examination of the question of jurisdiction, in all its aspects and bearings, that we have met with, and it clearly proves that it is not necessary that a party aggrieved by an illegal taxation shall have recourse, in any case, to a Court of Equity, since, in all, if he act promptly, and under proper advice, be may have an adequate remedy in a court of law.

Judgment for plaintiffs reversed, and judgment ordered for defendants.


text:
    Dodworth v. Jones.
    To maintain an action to recover the possession of personal property, the plaintiff must prove the legal title to be in himself or a special property with a right to the possession of it, at the time the action is commenced.
    A stereotyper, who is employed to prepare stereotype plates, and makes them out of materials belonging to himself, and with his own labor, cannot be divested of his legal title to the product or plates, by a tender unaccepted, of a just compensation for his labor and materials.
    (Before Campbell, Boswouth, and Hoffman, J.J.)
    Jan. 2; Jan. 27, 1855.
    This was an action to recover possession of eighty stereotyped plates, embodying a copy of a manuscript book, prepared by the plaintiff, and called “ School for Brass Band,” and. manufactured for the purpose of printing therefrom, and publishing a volume, underpaid title. The complaint stated the plates to be of the value of $400.
    The answer put in issue the wrongful detention of the plates, and the title of the plaintiff, and averred that defendant’s firm, being stereotypers, was employed by Billings & Taylor, to make and form the eighty stereotype plates, and to furnish materials therefor, according to a certain form furnished by Billings & Taylor. That defendant’s firm did so, and the work done and materials furnished were worth $90⅜⅞, and claimed a lien to that amount. It also alleged that plaintiff had possessed himself of the plates by proceedings in this action, and prayed judgment for $100 damages, besides costs, and such further or other relief as may be proper.
    The action was tried in April, 1854, before Ch. J. Oakley and a jury. A verdict was found for plaintiff, assessing his damages at six cents, and the value of the property at $400. The verdict was taken subject to the opinion of the court at General Term, on the questions of law arising in the .case, and which were ordered to be there heard in the first instance.
    The facts are these:
    The plaintiff composed a musical work, called “School for Brass Band,” and employed Billings & Taylor, who were printers, to furnish stereotype plates and print it. They not being stereotypers, set the type, and employed defendant’s firm, who were stereotypers, to prepare the plates. Defendant’s firm prepared the plates, and furnished the materials therefor, and their labor and materials were worth $90⅛⅞.
    The plaintiff paid Billings & Taylor in full, including the cost of stereotyping. They having failed, gave plaintiff an order-, on defendant’s firm, requesting them to deliver the plates to plaintiff, on their" being paid the amount of their lien thereon; for their work on the same. The order was presented to defendant’s firm, and $95 tendered, and a delivery of the plates demanded; and a compliance therewith was refused, unless the amount due to defendant’s firm from Billings & Taylor, in general account, was paid, which balance was claimed to be over $400.
    The action, now came before the court, pursuant to the order made at the trial, on the questions of law arising in the case.

      A. J. Vanderpool for plaintiff.

      H. M. Harrington for defendant.
   By the Court.

Campbell, J.

The plaintiff cannot recover in .this action, without proving that he was entitled to the..possession of the plates at the time it was commenced.

They were made by defendant’s firm out of. materials belonging to it, and by'labor furnished by it.. The title to this product was in the firm "on the completion of the plates, and would remain in- it,' until the firm made a delivery of the plates which, was accepted.

A mere tender of the contract price, or where that was not stipulated, of a fair compensation for the. materials and labor employed in making the plates, could not divest the legal title of defendant’s firm.

What remedies might be taken by the plaintiff to prevent a use of tbe plates by defendant’s firm, if it should attempt to print tbe book, it is unnecessary to discuss.

In tbe present action, tbe plaintiff, in order ‘to recover, must establish a legal title to tbe plates, or a special property in them, with tbe right of actual possession, at tbe time it was commenced.

It is clear that be has done neither, unless tbe tender which was made, but which was not accepted, bad tbe effect to divest tbe defendant’s firm of their title, and to transfer it to tbe plaintiff.

In our judgment, no such results were produced by it, and tbe verdict must be set aside, and a new trial granted, with costs to abide tbe event. •


author: Hoffman, J.

text:
    Samuel M. Miller and others v. James Watts, De Peyster, and Jeremiah Van Rensselaer. Henry Anderson and others, v. James Watts, De Peyster, and Jeremiah Van Rensselaer.
    These were bills of interpleader, filed by tenants of certain premises, after a claim for the payment of the rent made upon them by the defendants, De Peyster and Van Rensselaer respectively. The defendant De Peyster had sued the plaintiffs at law, and such suits had been enjoined. The court decided that the rents in question belonged to the defendant De Peyster, and awarded to the plaintiffs in the interpleader suits their costs, both of their own suits, and in the action at law brought against them; to be paid out of the moneys deposited by them. The question of liability for costs as between the defendants was reserved until the result of an inquiry as to an alleged agreement between the parties relating to such costs — it being reported that no such agreement was made out.

      Held, that the unsuccessful defendant Van Rensselaer, was bound to pay all the costs of his co-defendant in the interpleader suit, as well as all the costs which the plaintiffs therein had taken from the fund for their costs in such suits, or in those at law.

      Held, also, that the true rule was, to allow the successful defendant his costs of the action at law, instituted by him.
    (Before Campeele, Boswouth, and Hoffman, J.J.)
    Jan. 4; Jan. 27, 1855.
    The question came before tbe court upon tbe report of a referee, as to an alleged agreement between tbe defendants De Peyster and Van Rensselaer, and relating to tbe apportionment of costs in interpleader suits. Tbe facts appear in tbe opinion of tbe court.

      G. Livingston, for De Peyster.

      Joseph Blunt, for Van Rensselaer.
   By the COURT.

Hoffman, J.

By a decree of tbe General Term of this court, dated tbe 15tb of October, 1852, it was declared that tbe defendant Van Rensselaer bad no title or interest in tbe funds referred to in tbe pleadings; but that tbe same belonged exclusively to the defendant De Peyster; and that the claim set up by defendant Van Rensselaer was totally unfounded and untrue. Tbe decree declared a certain sum to be due from tbe plaintiff Miller, to tbe defendant De Peyster, for rent, and certain other sums from tbe other plaintiffs. A large part of tbe moneys so decreed to be due, bad been paid into court by tbe plaintiffs, upon filing their bills. These sums were adjudged to belong to De Peyster, and tbe plaintiffs were ordered to pay him tbe balance respectively, if there should remain any balances after payment of their costs, to which tbe decree declared them entitled, as well as to the costs of tbe suits instituted against them by tbe defendant De Peyster, in tbe Supreme Court. These bills were bills of interpleader filed by tbe respective plaintiffs after suits at law, commenced against them by Mr. De Peyster, and by reason of a claim for such rents made upon tbe parties by tbe defendant, Van Rensselaer.

Tbe court at General Term did not proceed to determine tbe question of costs as between tbe co-defendants in tbe interpleader suits, in consequence of an averment that an arrangement bad existed between tbe late John Watts and Mr. Van Rensselaer, and also between Van Rensselaer and tbe defendant De Peyster, relating to tbe enforcement of tbe claims for rent. An order of reference was made to inquire into tbe existence and extent of any such arrangement; and tbe question of costs is now to be settled upon tbe report which has been made upon that matter, and tbe accompanying evidence.

The defendant De Peyster denies in his answer any such agreement as is alleged, and there is no proof whatever to establish it against him.

Evidence is adduced to show that there was such an arrangement made with Mr. Watts, the effect of which would be, that the institution of such suitS.for rent was a violation’ of a contract between Yan Rensselaer and himself, and should at least exempt the latter from paying costs. This testimony consists of several letters from Mr. Watts, none of which in any degree establish the allegation. The other is the testimony of the highly respectable counsel, who can only speak of a contemplated arrangement for the collection of the rents, and payment into the Trust Company, which he allows was not consummated. There is also some unimportant evidence of Anthony Pricker, as to a conversation with Mr. Watts, in which he was told by the latter that he need not pay any more rent till the matter was settled.

It should be observed, that Mr. Watts died in 1836, and the suits in question were not commenced until the year 1847.

This defendant has failed in proving any agreement competent to vary the ordinary rule in these cases, as to costs.

That rule is well settled, and renders the unsuccessful claimant responsible for costs in all cases, except where special circumstances have induced the court to exercise its discretionary power in his favor. (Richards v. Salter, 6 John. Ch. Rep. 448, and cases cited; also Mason v. Hamilton, 5 Simons, 19.)

The costs allowed under these decisions are undoubtedly all the successful defendants’ costs in equity, and all the costs which are incurred by the plaintiff in the interpleading bills, both in equity and at law. I have had some doubts as to the costs of the defendant in his own suit at law, and these were not given in Richards v. Salter, nor apparently in Henry v. Key, (Dickens, 291.) But it was done in the well considered case of Dawson v. Hardcastle, (2 Cox, 277,) and in Mason v. Hamilton, (5 Simons, 19.) It appears to be the reasonable rule.

The order will be, that the defendant De Peyster recover from the defendant, Yan Rensselaer, all the costs which the plaintiffs shall be paid out of the money in court, or retain out of the unpaid balance in their hands respectively, and also all the costs of such defendant in this suit, and of the action at law commenced by him.

The order will be drawn by the defendant Van Rensselaer’s attorney, and be submitted for settlement upon notice.