author: By the Court.—Freedman, J. Speir, J.

text:
    CHARLES W. MAY, Plaintiff and Appellant, also Respondent, v. JACOB R. SCHUYLER, and others, Defendants and Respondents, also Appellants.
    I. PRINCIPAL AND AQBNT.

    1. Agent to sell, with no interest in the subject of sale.

      1. MODIFICATION OF TERMS OF EMPLOYMENT.

      (a) When it mat be made. At any time before the agent has fully performed the service for which he was employed; or in case the principal has waived or prevented full performance, then at any time before substantial performance.

      (b) Effect of modification at such time. The agent may decline to further act, or may make a new agreement with the principal as to the terms of his employment;

      But,

    if he does neither, and thereafter makes sales, such sales, and his compensation therefor, must be governed by the modified terms.

      1. Protest. This although he protests against the modification.
    3. Agent or broker to sell on certain specific terms, and
    AGENT OR BROKER EMPLOYED GENERALLY TO FIND A PURCHASER.
    1. COMPENSATION, WHEN EARNED.

      (a) Distinction between.
    1st. In the first case he must find a purchaser, ready and willing to complete the purchase on the terms specified.
    3d. In the second case it is sufficient if he brings the parties together, and a sale results in consequence thereof.
    3. Admissions by principal to third parties, effect of, as
    EVIDENCE IN THE AGENT’S BEHALF.
    1. A settlement, made by the principal with parties from whom he procured the goods which he had employed the agent to sell at certain prices, (the agent to receive all above such prices for Ms compensation,) on the basis and statement that he, the principal, was entitled to receive only those prices, is not absolute proof that the principal had not lawfully modified the original terms of the agent’s employment so that he was, in fact, entitled to receive much higher prices than those he thus stated to the third party, on the faith and basis of which statement a settlement was made with such third party.

      Decided November 7, 1877.

      (a) Contrary proved, effect. When the plaintiff has himself proved the fact to bo contrary to such settlement and statement, he cannot rely on the settlement and statement as countervailing his proof.
    (5) Wrong on the third party. Although, on such a state of facts, the inference is that the third party was wronged, and is entitled to recover the difference, yet the agent has no right to hold on to that difference.
    H. EVIDENCE.—ADMISSIONS.

      Vide supra.

    Before Sedgwick, Speir, and Freedman, JJ.
    In this action, judgment was entered upon the report of a referee, in favor of the plaintiff, against the defendants, for $37,077.56.
    Both plaintiff and defendants appealed.
    The plaintiff, by his complaint, alleged that on or about September 15, 1870, he procured for the defendants a sale to the French government of arms and military goods, at the aggregate price of $286,937.93. That the same were sold under an arrangement that for his compensation the plaintiff should have the excess over certain prices which had been named to him in a letter of July 9,1870, from the defendants. That such excess amounted to $32,881.95 ; from which certain charges were to be deducted.
    For a second cause of action, the plaintiff alleged that on or about October 26, 1870, he procured for the defendants a further sale to the French government of 5,250 Sharp’s carbines and 2,000,000 cartridges, at the aggregate price of $127,008.22. That such sale was procured under the' same arrangement, and that the excess of the price over the sum named in the letter of July 9, 1870, was $38,508.22, from which were to be deducted certain charges.

      For a third cause of action, the plaintiff „ alleged that he purchased from the defendants 1,320 Sharp’s rifles, and 660,000 cartridges at the price named in the letter of July 9, 1870, amounting to $33,000. That he sold them to the French government for $38,086.13, which the defendants collected and received to his use, the excess being $5,086.13, from which were to be deducted certain charges.
    For a fourth cause of action, the plaintiff alleged ’that the defendants sold to the French government, on or about October 3, 1870, 5,000 Spencer carbines and 2,780,000 cartridges, at the price of $206,378.31, and on or about November 1, 1870, 100 revolvers and 14,000 Qartridges at the price of $1,737.72 ; that the sale was procured by the plaintiff, and that for his services, he was entitled to the- usual and customary commission of 5 per cent.
    The plaintiff claimed that after deducting all the charges, and certain credits to which the defendants were entitled, there remained due to him $56,954.01, for which, with interest from January 1,1871, he asked judgment.
    The defendants compose the well-known firm of Schuyler, Hartley & Graham, dealers in military goods.
    The plaintiff, at the time in question, was a merchant doing business in Paris. He had been a partner, and subsequently, was the business correspondent in Paris of the defendants, doing business for them upon a commission of five per cent.
    The defendants, by their answer, admitted their letter of July 9, 1870, but they denied that the plaintiff had made any sales under the arrangement therein proposed; they further denied that the plaintiff had rendered any such services as he claimed.
    For a further defense, the defendants alleged that on or about July 15, 1870, war was declared between France and Prussia. That in consequence and by reason also of correspondence between the defendants and the plaintiff, all arrangements made prior to the declaration of war had ceased, and that the sales claimed to have been procured by the plaintiff, were really made by one William W. Reynolds, an agent of the defendants, under an agreement to compensate him for services in aiding Reynolds, different to that claimed by the plaintiff.
    The defendants claimed that pursuant to the terms of such new agreement, which the answer stated to have been made on September 27, 1870, the amounts which the plaintiff had received fully paid him.
    The answer also set up several counter-claims, which were put in issue by plaintiff’s reply. They have been abandoned upon his appeal, and hence it is not necessary to refer to them.
    By his report the referee found: That about September 15, 1870, the plaintiff did effect for the defendants the sale alleged in the plaintiff’s first cause of action, ■ and upon the terms there alleged. The net amount to which the plaintiff thereby became entitled being $24,208.11.
    That on or about September 15,1870, the defendants made to the plaintiff the sale mentioned in the plaintiff’s third cause of action, and upon the terms there stated. That the goods were subsequently sold by the plaintiff to the French government. That the defendants received the proceeds, and that, after deducting all charges, the defendants thereby became indebted to the plaintiff in the sum of $2,872.15.
    That the plaintiff procured for the defendants the sales mentioned in the plaintiff’s fourth cause of action. That he was entitled to a five per cent, commission thereon, and that the same amounted to $10,405.80.
    The referee further reported that the plaintiff had received from the defendants on account of their indebtedness, in goods $9,605.90, and a balance of $2,885.50 of cash, consisting in the difference between $7,223.24, received by the plaintiff to the credit of the defendants, and the sum of $4,337.74 paid by him on their account.
    Deducting those amounts from the sums reported in plaintiff’s favor left $24,994.66, for which, with inter-est, the referee reported in the plaintiff’s favor.
    The defendants excepted and appealed.
    The referee disallowed the plaintiff’s second cause of action, being of the opinion that the sale therein alleged to the French government was not procured by the plaintiff upon the terms of payment authorized by the defendants, and that they had not waived any departure from those terms ; and to that part of his decision the plaintiff excepted and appealed.

      Man & Parsons, attorneys, and Jno. E. Parsons, of counsel, for plaintiff.

      Abbott & Fuller, attorneys, and D. D. Lord, of counsel, for defendants.
   By the Court.—Freedman, J.

—By letter, dated July 9, 1870, the defendants, constituting the firm of Schuyler, Hartley & Graham, of the city of New York, employed the plaintiff, a commission merchant, in Paris, France, to sell for them in France certain arms and military goods, and in consideration that he should do so, the defendants in said letter, as is claimed by plaintiff, agreed to pay him as compensation for his services in ' selling the same or any part thereof, the difference between certain prices therein stated for such arms and military goods, and the price which should be obtained upon the sale thereof, and they also offered to sell to the plaintiff at the same prices any of the said goods. All sales were to be paid for in the city of New York.

On July 19, 1870, war was declared between France and Prussia, and on July 29, 1870, the firm of which plaintiff was a member, replied to defendants’ letter of July 9, which had been written to plaintiff individually, to the effect that they could do nothing without samples, and that even with samples they hardly knew what could be done, as the war department had written that it was fully supplied.

On August 19, 1870, the defendants determined to send their confidential clerk, Mr. Reynolds, to France, with full power to act for them within certain instructions, which will presently be noticed, as their agent in the sale of goods, and on August 20, Reynolds sailed, taking with him some samples. Others were subsequently sent subject to his order. His instructions were to obtain prices, payable in New York, which were considerably higher than those which had been named to the plaintiff. In all other respects he seems to have been intrusted with full discretionary powers. He also bore a letter to plaintiff’s firm in which the defendants introduced him as the representative of their firm, and in which they requested plaintiff’s firm to co-operate with him.

Reynolds arrived in Paris on September 1, and on the following day he called on the plaintiff and handed him his letter of introduction. During the voyage of Reynolds some communications had passed between plaintiff and defendants, which, however, in the view hereinafter taken, are not of sufficient importance to be referred to with particularity.

On September 2, 1870, the day after the first interview with Reynolds, plaintiff wrote to the defendants that up to that time he had not accomplished any sales, that all was rocking in Paris, but that the financial bottom was all right, though the then government was about ended.

On September 4, there was a revolution in Paris, which resulted, among other things, in the establishment, on September 8 or 9, of a commission of armament with authority to deal with private parties for the purchase of arms.

On September 12, defendants’ samples reached Paris, and on the following day May and Reynolds went together to the commission of armament to offer defendants’ goods. On their way there May proposed some changes in the prices of, some of the goods, and as these changes did not encroach upon the limits of Reynolds’ instructions, the latter assented that they might be made.

In the course of the negotiation which then ensued, the commissioners of armament expressed their willingness to take a large portion of the goods offered, but declined to pay until arrival; and as Reynolds was not authorized to sell, except for cash on shipment, the negotiation was suspended.

On the same evening May ascertained that four-fifths of the price which the commissioners of armament were willing to pay, would cover defendants’ interest in the sale, and thereupon he suggested to Reynolds, by way of getting over the difficulty, to propose to the commission that four-fifths be paid in Hew York on shipment, and the balance in France, on. arrival of the goods. May also agreed that in such case he would take his compensation out of the payment to be made in France. Reynolds agreed to the suggéstion. These terms were accordingly offered to, and finally accepted by the commission.

This transaction, together with further efforts made by May subsequently, during the siege of Paris, led to certain sales for "which the defendants received the whole of the proceeds. For the sales stated in the first, third, and fourth causes of action set up in the complaint, the referee found that the plaintiff is entitled to compensation.

Up to this point there is no conflict of evidence, and plaintiff s right to compensation is not seriously questioned. But as to the amount of compensation to which he is entitled upon the sales stated in the first and third cause of action, there is a decided conflict.

Reynolds testified that at his first interview with May he showed May the memorandum of prices below which he was not authorized to sell; that May compared these prices with those of the July letter, and found that they were higher, but that he made no objection to the increase, and no claim to the July prices, and that if he had, he (Reynolds) would not have employed him.

Reynolds further testified that on several other occasions, between the first interview with May and their joint visit to the commission of armament, he distinctly informed May that under all circumstances the goods would have to net in Yew York the increased prices contained on his (Reynolds’) memorandum, and that May was satisfied with it.

And he also testified that, after a commission of five per cent, on his memorandum prices had been agreed upon, May, on the way to the commission of armament, proposed to ask in gold such of the memorandum prices as were in the currency of the United States, and that the difference should be allowed to him in addition to the five per cent., to which Reynolds assented.

May, on the other hand, says that at the first interview with Reynolds, as well as afterwards, he claimed the benefit of the July prices, and that he never agreed to take any different rate of compensation.

If the case rested here, and the proof showed that in the face of this claim made by May, Reynolds, without objection, accepted May’s services, the assent of Reynolds to May’s claim might be inferred, and if he had authority to bind defendants by such assent, and thereupon the case presented simply a conflict of testimony, the fact as found by the referee could not be disturbed.

But the case does not rest here; nor does it present simply a conflict of testimony. The plaintiff, by his own testimony, showed that Reynolds never assented, but that, in reply to plaintiff’s claim, he always said that the plaintiff had to fight this out with Schuyler, Hartley & Grraham. On giving his version of the conversation had with Reynolds, immediately before their joint visit to the commission of armament, the plaintiff testified as follows:

Q. Did Mr. Reynolds then, or subsequently,—and if later state exactly at what stage of the proceedings —say anything to you, or did anything take place with reference to an effort on his part to increase the prices of the letter of July 9, 1870 ?

A. I have a list of prices in the handwriting of Mr. Reynolds, found among his papers, when I returned to Paris in the Spring of 1871, which, I think, he made that very day—the 13th of September.

Q. State what took place between Mr. Reynolds and yourself, with reference to those prices, and when it was, with reference to the commencement of your negotiations ?

A. He said, “We are going to show these samples now, and here are the prices, from which I will allow your concern a commission of five per cent., and all or any advance that you may obtain over those prices shall be for yourself.”

Q. Did he at that time show you a statement, or list of prices ?

A. He did ; and I said that I should not accept anything of that kind, that I worked by the letter of July 9, and he made use of the expression, “You will have to fight that letter with Messrs. Schuyler, Hartley ■& Grraham; these are the prices that I name.”

Other similar admissions are in evidence.

Upon plaintiff’s own showing, therefore, it is difficult to perceive how the report of the referee can be sustained as to the first and third causes of action alleged in the complaint.

Assuming plaintiff’s construction of the letter of July 9 to be the correct one, the proposition therein contained and plaintiff’s acceptance thereof, constituted a special contract, and unless plaintiff actually effected a sale or offered to buy according to the terms of it, he can maintain no action upon it against the defendants. And no time being specified therein, the defendants, it seems to me, were at liberty to vary their terms or to revoke and terminate the contract at any time before any such sale was actually effected or offer made. Whatever authority was conferred, was one not coupled with an interest in the goods themselves. It therefore remained revocable. The interest contemplated by the rule making an agency coupled with an interest irrevocable, must be one in the subject over which the power is to be exercised, and the power of revocation always includes the power to modify.

That Reynolds, even if he did not revoke, did essentially modify the contract originally entered into between the parties, at least so far as the same could be done against plaintiff’s protest, and that for that purpose he possessed all the power and authority which the defendants themselves could have exercised if personally present, is not controverted, and there being no pretense on the part of the plaintiff that he subsequently came to an agreement with the defendants themselves concerning the point in dispute, it clearly appears from his own showing, that in point of fact there was a failure to agree upon a new rate of compensation. As to the extent of Reynolds’ authority I will add, that in his brief the learned counsel for the plaintiff expressly concedes that there was no limitation of it in defendants’ letter accrediting him to the plaintiff.

The real question involved in the present appeal, therefore, is, whether the defendants immediately preceding the joint visit of the plaintiff and Reynolds to the commission of armament, remained at liberty to take back their original proposition and to insist upon an increase of prices. If they had the legal right to make this change, the referee erred in giving to plaintiff the benefit of the July prices, though, as between the plaintiff and Reynolds, he may have been justified in disbelieving Reynolds. And whether they were free to do so, depends upon the further question whether up to that time plaintiff had effected a sale or offered to buy according to the terms of the letter of July 9.

It is quite clear that he had done neither.

Leaving out of view tfie change that occurred by revolution in the French government, as a fact rather weakening than strengthening plaintiff’s case, the most that can be said of plaintiff’s efforts up to the time now under consideration is, that by them he had put himself into communication with a party desirous of purchasing in a certain contingency. But that was not enough. That the French government might eventually desire to buy some of the goods, was a matter clearly contemplated by the defendants before they wrote the letter of July 9. The existence and address of this possible purchaser was matter equally well known to both parties. To earn the benefit of the special contract upon which plaintiff relies, it was incumbent upon him to complete a bargain according to the terms of it.

Thus, in McGavock v. Woodlief (20 How. U. S. 221), it was held : “As the terms of sale were explicit, the proposal to fulfill should have been equally so. Nothing should have been left to conjecture or speculation. There should have been as much certainty on one side of the contract as upon the other. Certainty in the offer to fulfill is as important to the vendor as certainty in the terms of the sale to the vendee, and equally necessary before the vendqr can be put in fault.

“The broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions.

“ Then he will be entitled -to them, though the vendor refuse to go on and perfect the sale.”

In short, when the right to compensation depends upon a special contract, plaintiff must perform the undertaking assumed by him, and no matter what the terms and conditions may be, upon which the right to compensation depends, they must be performed as a condition precedent to a right of action for the recovery of the specific compensation (Fraser v. Wyckoff, 63 N. Y. 445; Jacobs v. Kolff, 2 Hilt. 133; Gregory v. Mack, 3 Hill, 380).

It is only in cases where the broker is employed generally to find a purchaser, that it is sufficient to entitle him to compensation, that a sale is effected through his agency as its procuring cause. In such a case, his agency may consist, simply, in bringing the parties together, and leaving them to make their own bargain. Yet, if a sale actually results in consequence thereof, he is entitled to recover, and it then matters little whether the compensation for the service actually rendered has been fixed by agreement, or is left to depend upon a custom.

But the case at bar does not fall within that class of cases. It is a case of special contract which plaintiff had not performed, when defendants refused to be bound by it any longer. It was, therefore, competent for them to prescribe new conditions, upon which they would continue bound, and upon such new conditions being made known to plaintiff, he - had his option to assent or to withdraw. Not having withdrawn, whatever services were subsequently rendered by him must be deemed to hane been rendered as if no agreement for compensation, except such as the law implies, had been made. As the case stands, his protest is unavailing in the absence of proof that it was heeded by the defendants, and that it led to a hew promise or agreement on their part, to pay the compensation originally named. It is not enough that he has rendered valuable services to the defendants. For these he may be entitled to a reasonable reward. But before he can recover the specific compensation sued for, it must appear, that before the change in the prices was communicated to him, he had done the very thing for which the reward that he demands was promised. True, strict performance could not be insisted upon, if it appeared that plaintiff, at the time in question, had substantially performed, and that the defendants had waived or prevented full performance. But the question of excuse for non-performance does not arise in this case. «

The referee therefore erred in computing plaintiff’s compensation claimed under the first and third causes of action alleged in the complaint upon the basis of defendants’ proposition contained in the letter of July 9, and in adjusting the accounts between the parties upon such erroneous computation ; and as such error necessitates a reversal of the whole judgment and the granting of a new trial, the point presented by plaintiffs’ appeal in consequence of the refusal of the referee to allow anything on account of the second cause of action alleged in the complaint does not require further consideration at present. Plaintiff’s claim in that respect will have to be examined again upon the new trial, upon the evidence which may then be produced, and determined according to the rules of law called for by the facts as they may then be made to appear.

In conclusion it may be well to say a few words yet concerning the settlement made between the defendants and the Remingtons.- This, it is true, contained an admission by the defendants that the prices which they were entitled to receive, were only those contained in the letter of July 9. But such admission was not absolute proof of the fact, and the plaintiff himself has proved the contrary, as hereinbefore stated. On this state of facts the inference is that the Remingtons were wronged, and that they are entitled to recover the difference according to the proof in this case. But the plaintiff has no right to hold on to that difference.

The judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs to defendants to abide the event.

Sedgwick, J., concurred.

Speir, J.

[Dissenting.] —On July 9, 1870, the defendants wrote a letter to the plaintiff in Paris whereby they employed the plaintiff to sell for them in France certain arms and military goods, and agreed to pay to him as compensation for his services in selling the same, or any part thereof, the difference between certain prices therein stated and the price which should be obtained on the sale thereof. They also offered to sell to the plaintiff at the same price any of the said goods.

An important feature in the answer, directly bearing upon the main question in issue between the parties, is the allegation relied upon by the defendants, as a defense to the plaintiff’s claim, that the firm of B. Remington & Sons were interested with them in certain of the arms, and that, in reliance upon an alleged agreement made by their agent Reynolds with the plaintiff, in changing prices, which it was asserted was made by the letters of September 27, 1870, they had settled with E. Remington & Sons, paying them over $20,000 more than if they had settled by the prices of July 9, 1870 ; that they would not have paid said sum to the Remingtons if they had believed that the plaintiff had any just claim against them other than as stated in the letters of September 27, 1870; and they therefore insisted upon the $20,000 by way of counter-claim. This issue in the pleadings, and the abandonment of this counter-claim, will be referred to presently.

The letter of July 9, 1870, was written in anticipation of war between France and Prussia. On July 4, 1870, the proceedings in the corps legislatif everywhere produced the belief that war was inevitable. The .French legislature declared war on the 15th, and on the following 19th of July, the French Minister left Berlin. The defendants, between July 15-and 19, began to write letters to different people in Europe on the subject of selling arms, and among others wrote the letter in question. It is appar-' ent from the whole record that the future negotiations were subsequent to the declaration of war, and there is no intimation that the business arrangement between the parties had become invalid by the fact of war. If the letter, therefore, was accepted and acted upon, the question of war has nothing to do with the validity of the contract between the parties, provided its performance was not rendered impossible by any act of law. This is not claimed.

On the said July 29, the plaintiff’s firm replied to the letter of July 9, to the effect that he could do nothing without samples, and even with samples he hardly knew what could be done, as the war department had written that it was fully supplied. As the defendants had written in the proposal of July 9, “You can telegraph us if you think necessary,” the plaintiff on August 23, then next, telegraphed to the defendants inquiring ‘ ‘ How many arms they- could ship with 400 cartridges each,” and that he, the plaintiff, could probably contract all having that number.” This message refers in terms to the letter of “ July 9,” as .plaintiff’s ground of action. On the following day the defendants’ answer by telegraph, “ Can furnish about all the arms per our letter of July 9,” and it informs the plaintiff, Our Mr. Reynolds left with full set of samples by steamer Brest last Sunday-—meet him.” The plaintiff wrote on August 26 to the defendants, repeating his telegram of the 23rd, and the defendants, on the following September 7, acknowledged the receipt of plaintiff’ s letter of August 26, and in it confirms in detail the prices contained in the first letter of July 9, 1870. They write, “We still can furnish 1500 Remington rim fire carbines, cal. 52, $15.50, metallic cartridges for ditto $21.50,” etc., etc. This letter of September 7, 1870, was written only seven days before the sale was made ; and the sale was made before the letter could reach Paris.

Prom the above correspondence it is plain that the defendants’ offer in their letter of July 9 was accepted by the plaintiff, and upon the terms proposed. Up to this point the negotiation was conducted solely between the plaintiff and the defendants, and there is no conflict of evidence. The terms proposed were not only accepted by the plaintiff, but clearly ratified by the defendants’ acceding to his requests in forwarding samples, without which sales could not be made, and without change in the prices for the goods to be sold.

A contract then existed between the parties by which the defendants became bound in law to pay to the plaintiff for all such goods named in their offer of July 9, 1870, as he should sell to the French government or any one else, for his services on such sale the difference between the prices in such offer stated for the goods and those which he should obtain upon their sale.

Were any material changes made in the terms of this contract by the plaintiff, either with the defendants or their agent, Reynolds %

It is claimed that when Reynolds went to Paris he had certain instructions as the defendants’ agent in the sale of the goods, and that, prior to September 15, 1870, the date of the French sale, he and the plaintiff had agreed upon an advance in the prices contained in the 'letter of July 9, correspondingly reducing the plaintiff’s compensation. On the part of the plaintiff it is claimed that the agent had no authority from his principals to change the prices, that the defendants had not given such instructions to their agent, or claimed to have made any change, until after the sale had been completed.

Mr. Reynolds left New York for Paris August 20, 1870, and the first interview with the plaintiff was had September 2 following. Reynolds took with him samples of goods from the defendants which the plaintiff had called for. These samples were marked for the plaintiff, and the bills of lading stated the goods to be for him. The defendants’ letter, introducing him to the plaintiff, August 19, 1870, makes no mention of prices. “ It trusts that the plaintiff will give him his hearty co-operation, that the plaintiff would find him well posted as to the quantity and quality of arms, and he would represent the firm in .obtaining arms and cartridges.” These arms and cartridges were to “be obtained from the defendants in New York, the quantity and quality of which was known to Reynolds.

I am unable to find from the correspondence any evidence that the defendants at any time before the sale pommunicated to the plaintiff or the agent, Reynolds, that they had changed the prices of the goods. The sale was made on September 14, 1870, and communicated to the defendants by a telegraphic dispatch the same day, in cipher, devised by the plaintiff, and agreed upon between the parties beforehand; and the prices named therein are the prices of the letter of July 9, 1870. On September 7, the defendants wrote, “Before this reaches you Mr. Reynolds will inform you what we can furnish,” and in this letter the prices named for the goods are the prices contained in the letter of July 9.

As the case stands it does not rest upon the conflicting testimony of Reynolds and the plaintiff relating to the conversation between them about the change of prices. There seems to be on that point a positive contradiction as to what was said. The referee having the parties before him in the light of the correspondence in the case gave unqualified credit to the plaintiff, and I a,m of the opinion the evidence fully justifies his judgment. l'Tor can I see the significance claimed by the defendants’ counsel to the one point on which Reynolds and the plaintiff appear to have agreed. The statement by both is in substance that at the time they were to show the samples to the commission of armament Mr. Reynolds exhibited to the plaintiff a statement of prices, and the latter said, “he should not accept anything of the kind, that he worked by the prices of July 9, and Mr. Reynolds said, you will have to fight, that letter with Messrs. Schuyler, Hartley & Graham.” This is in accord with the plaintiff’s case. The point is that the defendants did not change the terms of the contract until after it was executed, when they had not the right to do so. Reynolds, as agent merely, could neither by any act of his own, or by any declaration he might make, prove either his agency of the defendants or the extent of his powers. The declarations or representations of Reynolds as agent, not expressly authorized by his principals, could not •bind the plaintiff unless within the scope of his agency (N. Y. Life Ins. & Trust Co. v. Bede, 3 Seld. 364).

But this is not the whole case. The defendants have furnished affirmative testimony showing, I think, conclusively that they acted upon the terms of the July letter, and did not authorize their agent, Mr. Reynolds, to raise their prices until after the sale was effected. The record shows that the defendant Schuyler was examined before the trial upon the allegation in the answer relating to the defendants’ counter-claim of $20,000, which it alleged had been paid to the Remingtons on a settlement of their respective interests in the goods. It appears from Mr. Schuyler’s testimony that the settlement was based upon the prices of the letter of July 9, 1870, and not on the prices of the letters of September 27,1870. On the examination the books were not produced, but on the trial they were produced, and from them it appears that the plaintiff is stated to have been the purchaser of the goods, and on the bill entered in the book the letter of July 9 is referred to as containing the prices at which they were sold. This evidence is confirmed by the testimony of both the agent, Reynolds, and the defendant, Hartley. It is but fair to say that the; both claim that the settlement with the Remingtons was a forced settlement, and in some way should not be deemed as binding.

But the copy of the book produced on the examination of Mr. Schuyler before the trial, did not contain the name of “May, July 9, 1870,” over the bill as settled by the defendants with the Remingtons, which appeared on the bill produced on the trial. The defendants must be concluded by their books containing the sales made by the plaintiff, at the time and the prices therein named. This counter-claim set up in the answer was abandoned on the appeal by the defendants’ counsel.

On December 12, 1870, the samples which the plaintiff had written for, reached Paris, and on the following day he, co-operating with Eeynolds, as requested by the defendants, offered the goods by' sample to the commission „of armament, and in the course of the negotiation, it was agreed that four-fifths of the price which was to be paid should be paid in New York on shipment, and one-fifth thereof should be paid in Prance, on arrival of the goods, and that the plaintiff should táke his compensation out of the payment made in Prance. If this be deemed to be a variance of the contract, the answer'is that the terms were assented to by the defendants. The plaintiff’s telegram of August 23, 1870, informed the defendants that French sales would be made in Paris, and the telegram informed the defendants when the sale was made how the payments were to be made. Plainly the defendants were called upon either to decline such a change or to say to the plaintiff that they would not accept it as performance of the contract. They did neither, but received the four-fifths of the proceeds in New York, and afterwards received one-fifth, which belonged to the "plaintiff. This was a ratification. The subsequent adoption was equivalent to a prior authority.

The plaintiff must be presumed to have been selected by the defendants as their agent for his skill, discretion, and the confidence consequently reposed in him by his principals. He had been their clerk and partner in New York, and their correspondent in Paris, where he resided. He was familiar with the French language, and had access and intercourse with prominent public and military men in France. Mr. Eeynolds was not versed in the French language, and could not speak it, but was familiar with the quality and quantity of goods which the defendants had, or could procure in Hew York, for sale.

The plaintiff was not in a position to delegate his authority to Reynolds, or anybody else, without express power conferred by his principals. His relation to them involved personal trust and confidence, and largely called for discretion and judgment.

It is not claimed that the goods sold, as stated in the fourth cause of action, are mentioned in the letter of July 9, 1870. The claim is for a commission of five per cent, on the sale of the goods. The defense here is that the sale of these arms was not the result of any act of the plaintiff, but that they were sold by the defendants to the French consul in Hew York. The referee has found for the plaintiff upon the ground that he, as broker, was authorized to sell the goods to the French government; that he had made such offer and it was distinctly commxinicated to the defendants, and that they adopted the offer to sell. It is true he did not himself procure any agreement to be made. He had procured and exhibited the samples, without which the French commission of armament would not have known anything of the arms. He brought the buyer and the seller together, gave notice of the price, and put the government in the way of treating with the defendants. I think the case is brought within the rule well settled, and the finding of the learned referee should be sustained.

The second cause of action was found for the defendants. The referee was of the opinion that the defendants had authorized the plaintiff to sell only for cash in Hew York, and that the plaintiff contracted to sell these goods, the whole amount to be paid in France. He came to the conclusion that the defendants did not ratify in this case what he found to be a departure from their instructions. Besides, from an examination of all the testimony, I am of the opinion that there is a conflict whether the plaintiff or the defendants themselves effected the sale, and the decision of the referee on this branch of the case should stand.

The case is unusually voluminous, and a great many exceptions were taken during the progress of the trial, to the referee’s rulings in receiving and rejecting testimony. It is not necessary to examine the evidence and exceptions in detail. Much of the evidence was irrelevant, and I haye been unable to discover any valid exception. Nearly one hundred propositions of fact, and about one quarter of the number in law, were submitted for settlement. These chiefly consisted of requests to find evidence and not facts, and the referee had mostly decided by his report, those which the party had the right to require him to pass upon. I am of the opinion that there is ample evidence in the case, independent of the objections and exceptions taken,, to support the judgment, and the findings and conclusions upon which it rests.

The judgment entered on the report of the referee must be affirmed.
      The dissenting opinion contains nothing adverse to the propositions in the head-notes. The difference of opinion between the learned judges arises from the conclusions of facts which they arrive at from the evidence.
      The prevailing opinion proceeds on the ground that defendants had modified the terms of the letter of July 7, and had, through Mr. Reynolds, their duly authorized agent, notified the plaintiff of such modification before he had effected any sales under that letter.
      The dissenting opinion proceeds on the ground that defendants had not, at any time before sales effected under the letter of July 9, changed, or communicated to plaintiff, or to Mr. Reynolds, any change in, the prices fixed by that letter, o


source: Caselaw Access Project

author: By the Court.—Curtis, Ch.

license: Public Domain

text:
    THE GERMANIA BANK OF THE CITY OF NEW YORK, Plaintiff, v. HESTER FROST, Defendant.
    INDORSER OF PROMISSORY NOTE, LIABILITY OF.
    A holder of a note cannot, by any agreement with the maker, without the consent of the indorser, change the original contract, or affect the remedies of the indorser against the maker, without discharging the indorser.
    When judgment has been confessed upon a promissory note, execution issued, and levy made upon property of the maker as security, the payee discharges the indorser by satisfying such judgment without the indorser’s knowledge or -assent.

      Decided January 7, 1878.
    An indorser of certain promissory notes, having consented that the .holder might compromise with maker, and agreed to still remain liable as indorser for full value of notes, and said holder, with other creditors, having signed a composition deed agreeing to take fifty per cent, of their claims, which was the compromise to which the indorser" consented, and said holder afterwards, in violation of said agreement, having demanded and received, in lieu of the original notes, without the indorser’s knowledge or assent, notes for one hundred per cent, of his said claim, such notes are void as being in fraud of creditors, and the indorser is released from his agreement.
    Before Curtis, Ch. J., and Sanford, J.
    At the trial of this action, after the testimony was taken, the court directed a verdict for the defendant, and ordered the' exceptions to be heard in the first instance at the general term.
    The complaint was upon two promissory notes, charging the defendant as indorser. There was evidence that Richard W. Frost, defendant’s son, confessed judgment on the notes in question, May 26, 1874, that an execution issued, under which a levy was made on defendant’s property, and that the plaintiff satisfied the judgment August.7, 1874. There was also placed in evidence a "composition agreement of Richard W. Frost with his creditors, signed, among others, by the plaintiff. The plaintiff, after signing the composition agreement, refused to accept fifty per cent, in the notes of R, W. Frost, according to the agreement, but insisted upon and received from Frost his notes for the full amount. The defendant put in evidence the following, signed by the defendant:

      “ June 22, 1874.
    “ Germania Bank :
    “I being aware of the agreement entered.into between Richard W. Frost and the Germania Bank, with reference to two notes amounting to $1,250 made by Richard W. Frost, and indorsed by me, I consent that the Germania Bank may compromise with Mr. Frost, and that I am to remain liable as indorser on said notes to the full amount thereof," until they are paid.
    “Yours, &c.,
    “Hester Frost.”
    Subsequently the plaintiff executed and delivered to Richard W. Frost the following receipt and release :
    "Received from Richard W. Frost, of the city of Hew York, his three promissory notes, as follows : one dated July 1, 1874, payable four months after date, for $416.66-100; one dated same day at five months for $416.68-100, and one dated same day for $416.66-100, payable six months after date, reserving, however, our rights against the indorser on the original notes, and we do hereby release and discharge the said Richard W. Frost from all claims and demands of every nature or kind we have or had against him, excepting the promissory notes above mentioned.

    At the trial, after the closing of the testimony, the defendant moved to dismiss the complaint on these grounds: 1st. The defendant being indorser on the two notes in suit, and Richard W. Frost, the maker, having confessed judgment to the plaintiff to secure the same, on which execution was issued, and a levy made on the property of Richard W. Frost, and the plaintiff having, without the consent of the defendant in this action, satisfied the judgment, she is discharged from liability as indorser on said notes.
    2nd. The plaintiff having executed Richard W. Frost’s composition deed, to accept 50 centum of its debt against him, without reserving its rights in the deed against the surety, discharged the defendant as such surety.
    3rd. The plaintiff having executed the composition deed, in and by which it agreed to accept 50 per centum of its indebtedness against Richard W. Frost, in his notes in full payment and discharge of such indebtedness, and having refused to accept the same, unless 100 per centum in his notes were given, which the plaintiff accepted; such acceptance was a fraud upon the creditors and discharged the defendant as surety.
    4th. The defendant’s consent that the plaintiff might compromise with Richard W. Frost, was a consent to compromise, in accordance with the terms of the composition deed, and the plaintiff having failed to compromise in accordance therewith, the consent thereupon became void.
    5th. The case arising in questions of this character, was not whether the act of the plaintiff was an injury to the surety, but whether it might have been injurious.
    The court directed a verdict for the defendant, exceptions to be heard in the first instance at the general term, and the plaintiff’s counsel excepted.

      William A. Coursen, of counsel, for plaintiff, among other things, urged :
    —I. The confession of judgment did not, in any wise, invalidate the claim of the plaintiff against the defendant (the indorser of the notes in controversy) (Mohawk Bank v. Van Horn, 7 Wend. 117; Sizer v. Heacock, 23 Id. 81).

      II. If there were any reason why the bank should be restrained in any way in compromising with the maker, it can hardly be contended that a change in terms in favor of the holder of the note, as against the maker, can injuriously affect the indorser. Thus, if the original composition paper would secure from the maker a. certain percentage on the whole amount, and thus save the indorser an ascertained portion of liability, very surely, if by any composition, the bank (or holder of the notes thus indorsed) can secure a greater percentage from the maker of the note—so far will the indorser be benefited (See Lynch v. Reynolds, 16 Johns. 41, 42; Bruen v. Marquand, 17 Id. 61; Edwards on Bills, 571, and cases there cited).
    III. We may here advert to the well-known law that the note of a debtor does not operate as payment of a debt, unless the note is actually paid (See Coles v. Sackett, 1 Hill, 516; Hill v. Beebe, 13 N. Y. 556; Bradford v. Fox, 38 Id. 289; Winsted Bank v. Webb, 39 Id. 325).

      C. Bainbridge Smith, of counsel, for defendant, among other things, urged :
    —I. The defendant being the indorser on the two notes in suit, and the plaintiff having procured the maker, Richard W. Frost, to confess judgment, to secure the same, and having issued execution on the judgment, and caused a levy to be made on the property of Frost, a satisfaction of this judgment without the assent of the defendant discharged her as such indorser (Vose v. Florida R. Co., 50 N. Y. 369, 374; Ducker v. Rapp, Id.; S. C., 4 N. Y. Weeldy Dig. 174; Bangs v. Strong, 10 Paige, 11, 16; Boyd v. McDonough, 39 How. Pr. 389; English v. Darley, 2 Bos. & Pul. 62; Mayhen v. Crockett, 2 Swanst. 191; Reese v. Barrington, 2 Ves. Jr. 542; Eyre v. Bartop, 3 Mad. 225; Bank of Steubenville v. Leavitt, 5 Ham. 207). 1. The defendant as surety was entitled to be subrogated to all the rights of the plaintiff, and had a right to claim the judgment recovered by the plaintiff against the principal debtor : the satisfaction of the judgment operated to discharge the surety. (Boyd v. McDonough, 39 How. Pr. 389; Vose v. The Florida R. Co., 50 N. Y. 369, 378). 2. The defendant as indorser and surety was discharged from liability upon the notes by reason of the time given to the drawer of them without her assent (Ducker v. Rapp, 4 N. Y. Weekly Dig. 174; Reese v. Barrington, 2 Ves. Jr. 540; Summer’s Ed. note A). 3. The question is not whether the arrangement did prove injurious, but whether it might have been injurious to the surety (lb.).

    II. The plaintiff executed Richard W. Frost’s composition deed agreeing to accept fifty per cent, on the dollar against him without reserving its rights -in the deed against the surety. The deed in such cases operates as a discharge to the surety. (See composition deed, p. 11, 12; Exp. Glendenning Bucks, B. C. 517; Cullingworth v. Lloyd, 2 Beav. 385; Lewis v. Jones, 4 B. & Cress. 506; S. C., 10 E. C. L. R. 393; Wilson v. Lloyd, 16 Eq. 60.)
    III. The plaintiff having executed the composition deed, in which it agreed to accept in Richard W. Frost’s notes fifty per cent, of its indebtedness against him in full payment and discharge of such indebtedness, and having refused to accept the compromise notes or discharge Frost unless his notes were given for the full amount which the plaintiff accepted; such acceptance was a fraud upon the creditors and discharged the defendant as surety (Breck v. Cole, 4 Sandf. 79; Pineo v. Higgins, 12 Abb. 334; 1 Story's Eq. Jur. §§ 378, 379; Lawrence v. Clark, 36 N. Y. 128).
   By the Court.—Curtis, Ch.

—The defendant having consented to the making of the compromise between the plaintiff and Richard W. Frost, with reference to the two notes, amounting to §1,250, made by him and indorsed by her, and agreeing to remain liable as indorser on the same, to the full amount, or until paid, is not in a position to dispute her liability as indorser, unless she is discharged by some act on the part of the maker, or the plaintiff, having in law the effect of releasing her from this agreement.

It is contended by the plaintiff, that this consent of the defendant was in general terms, and does not, and was not intended to limit the parties to any particular terms or manner of‘compromise as a condition of the indorser remaining liable. The evidence in the case tends to show the contrary. The consent of the defendant was made on June 22, 1874, and upon its face refers to some existing agreement of compromise between the plaintiff and .the maker of" the notes, of. which the defendant is aware, and apparently in consequence of which the defendant signs the consent. The composition agreement between the maker of the notes and his creditors, including the plaintiff, to accept fifty cents on the dollar in his notes for their respective claims, appears to have been made some time prior to July 1, 1874, and seems to be the agreement referred to in her consent, and not the one entered into on July 14, 1874, by which the plaintiff releases the maker from all claims against him in consideration of one hundred cents on the dollar in his notes. As this latter transaction was a departure from the terms of the composition agreement, and occurred over three weeks after the defendant signed the consent, it must, in the absence of proof to the contrary, be assumed that it was entered into without the knowledge or concurrence of the defendant, and that her agreement to remain liable was based upon the existence and fulfillment of the composition agreement referred to in the instrument executed by her.

If the plaintiff elected to make a new compromise, and take new notes from the maker, and to release him the original notes, the indorser is released, .notwithstanding any reservation as to her liability as indorser which the plaintiff and the maker may agree upon without her assent. If the plaintiff wished to hold the defendant as indorser, the composition in reference to the making of which she consented to remain liable as such should not have been abandoned. Her consent extended to no other compromise than that referred to in her consent, and the substitution of a different one was a breach of the condition on which she consented to remain liable, irrespective of the question whether she would be benefited or not by the substitution.

It is also evident that the plaintiff by entering into this second composition agreement with the maker of the notes, and discharging him from all liability thereon, placed itself in the position where it was obliged to satisfy the judgment it held against the maker as collateral security for the original notes, after having-issued execution and having caused a levy to be made on the property of the maker, thus depriving the defendant of the benefit of this collateral security, and destroying its value, without the assent or knowledge of the defendant. It is well settled that a creditor cannot, without the assent of the indorser, by any agreement with the maker of the note, change, as in this case, the original contract, or affect the remedies of the indorser against the maker, without discharging the indorser ; nor has the creditor the right to release and discharge the collateral securities, and collect from the indorser what should have been paid out of the property of the maker who is primarily liable (Vose v. Florida R. R. Co., 50 N. Y. 374; Bangs v. Strong, 10 Paige, 16).

It is apparent that the plaintiff, having signed the composition deed, is debarred from profiting by any private agreement that secures to it any advantages that are not shared in by the other creditors. The act of the plaintiff in taking additional security is in violation of that good faith, that all were to share alike, which naturally induced the other creditors to sign, and the realization of its additional security to that extent diminishes the ability of the debtor to comply with his agreement with the other creditors. Such an agreement for additional security is a fraud upon the other creditors, and consequently all the notes that were given as the fulfillment of such an agreement are illegal and void (Breck v. Cole, 4 Sandf. 79).

The plaintiff having taken, in lieu of the original notes, these notes that were fraudulent and void, has destroyed the value of what the defendant would be entitled to be subrogated to, and by its own acts has prevented the defendant from ever being in a position to enforce them against the maker. To hold the surety liable after such acts on the the part of the creditor, would be inconsistent with the requirements of good faith, and conflict with established legal principles.

The remaining exception presented by the appellant, was to the admission of a question addressed to a witness at the trial; but as no ground was then stated for objecting, there is no occasion for considering it.

The plaintiff’s exceptions are overruled, and the defendant is entitled to judgment upon the verdict, with costs.

Sanford, J., concurred in the result.


author: By the Court.—Curtis, Ch. J.

text:
    ABRAHAM B. CLARK, Plaintiff, v. ABRAHAM BININGER, Defendant.

      Decided January 7, 1878.
    RECEIVERS, SUBJECT TO ORDERS OP COURT.
    Neglect or refusal to comply with such orders subjects him to punishment by fine and imprisonment, for contempt.
    The summary jurisdiction of the courts, under the common law, to punish a delinquent officer for disobedience to its lawful order, has not been restricted by statute.
    It is sufficient if the party charged with contempt had reasonable notice of the application to punish him, and was served with copies of the affidavits upon which it was based. The law does not contemplate an idle ceremony in serving papers that have already been served, and which are in the possession of the party accused, and are referred to in the order to show cause, served on him (Albany City Bank i>. Schermerhorn, 9 Paige, 375).
    Before Curtis, Ch. J., and Van Vorst and Freedman, JJ.
    Appeal of Thomas J. Barr, receiver, from an order of the special term, adjudging him guilty of contempt, and imposing a fine.

      James Henderson and Henry C. Denison, for Thos. J. Barr, receiver, appellant.

      George N. Titus, in propria persona, respondent.
   By the Court.—Curtis, Ch. J.

—Thomas J. Barr, the receiver in this action, appeals from an order adjudging him in contempt, for refusing to obey an order of the court, requiring him to pay out of the property, or its proceeds, that, he holds as receiver, a sum suffieient to discharge the lien of the respondent, Greorge IS". Titus, thereon, and imposing a fine upon him to indemnify the respondent.

The appellant claims that the court had no power to impose a fine for his disobedience to the order requiring him, as receiver, to pay out of the property, estate and effects, by him so held, or the proceeds thereof, the amount for which it was adjudged the respondent had a lien thereon. It is urged that the court, by sections 4 and 5, 2 R. 8. 534, concerning contempts, is restricted, in a case of this nature, to issuing a precept to commit the person thus disobeying, as for a refusal to pay costs, or any other sum of money, so that when committed he may avail himself of the liberties of the jail, and of the statutes respecting assignments by imprisoned debtors.

It may be doubted if the legislature intended to limit the jurisdiction of the courts, when seeking to compel a delinquent officer to deliver over or account for property, or the proceeds of property, coming into his custody temporarily and solely in his official capacity, to confinement within the liberties of the jail, until he should make an assignment for the benefit of his creditors. I can see no reason for holding that the ancient and summary jurisdiction of the courts, in such contingencies, has been restricted to such a feeble and ineffectual remedy. The eighth subdivision of the first section (2 R. 8. 533), of the statute declaring the power of the court in certain cases to punish for contempt, extends this power to all other cases where attachments and proceedings, as for contempts, have been usually adopted and practised, in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party. In the learned opinion of the court, Cower, J., in The People v. Nevins (1 Hill, 169), a proceeding to compel an attorney to pay over moneys, it is stated that this statute nowhere forbids the court to proceed in the former common law mode ; but merely provides that it may commit in a particular form short of that.

But the order itself is simply one requiring the appellant, as receiver, to perform an act in respect to the property, or the proceeds of it, that he holds as receiver, and for the discharge of a certain lien thereon, and his disobedience of such order is not one of the class of contempts for the non-payment of costs, or any other sum of money, contemplated by section four of the statute above cited. The proceeding under the twentieth and twenty-first of the succeeding sections, by which the appellant was convicted of a contempt, and fined for refusing to perform the acts required of him as a receiver, was within the power and jurisdiction of the court.

The appellant alleges that there was no proof before the court, that a certified copy of the order, requiring the payment of the money in question, was ever served upon him, or that it ever came to his knowledge, and that a copy of the demand made upon him was not served upon him, and that consequently there was an omission to serve him with a copy of all the papers upon which the motion to punish him was made.

The affidavits of the service of a certified copy of this order on him, April 19, 1877, personally, and also of a copy on his attorney, April 16, 1877, and the affidavit of the making and service of the demand on him, are clear and specific. The affidavit of the respondent is equivocating, and as far as intelligible, shows that this demand and certified order were not served upon him on May 28, 1877, nor upon him or his attorney since. His attorney makes no affidavit about it.

It was sufficient, if the appellant had reasonable notice of the application to punish him, and copies of the affidavits and papers upon which it was based. The proceeding is not invalidated because some of the papers or affidavits were served previously to others. The papers were served in compliance with the order to show cause. The law does not contemplate an idle ceremony in again serving papers that have been already duly served, and which are in the possession of the accused, and are referred to in the order to show cause served on him (Albany City Bank v. Schermerhorn, 9 Paige, 375).

The affidavit of the appellants fails to establish that he was incapacitated from complying with the terms of the order, by reason of the failure of the Bowling Green Savings Bank, where he alleges he kept his funds. He states that at the time of the failure of the savings bank, there was to his credit, as receiver, the sum of $9,302.68; but he omits stating that the whole or any part thereof was lost by such failure, or was not repaid to him by the bank. Even if it was claimed that he had lost anything by the failure of that bank, there is nothing to show that it was a proper or designated depository for trust funds, or that it was even reputed to be a proper or safe one for such a deposit, or in fair credit or respectable standing. The affidavit of the appellant, as to the disposition he made of the property that passed into his custody as receiver, is too vague and unsatisfactory t'o sustain his appeal, on the ground of incapacity to comply with the order (O’Mahoney v. Belmont, 62 N. Y. 150)

The failure of the appellant to satisfy the lien of the respondent produced a loss or .injury to the amount of that lien, and the same was clearly shown before the judge, who imposed the fine to indemnify the respondent for such loss, in accordance with section 21 of the statute above referred to.

If the order, which the appellant elected to disobey, was erroneous, he could have appealed from it. He chose not to pursue that course, and now urges that its merits are properly inquirable into on the appeal from the order adjudging him in contempt, citing Brinkley v. Brinkley (47 N. Y. 50).

The court, in originally transferring the possession of the property in the custody of the receiver to the assignee in bankruptcy, had and exercised its equitable jurisdiction in protecting a pre-existing lien upon it, the justice and legality of which is shown, and should not be questioned by the appellant, who is adjudged in contempt for disobeying a subsequent proper and collateral order, made in carrying out and giving effect the original order.

His duty as receiver was to comply with the orders of the court, and it is no part of his duty, so far as they determine the liens and rights of other parties, to contest them and make such contests a pretext for not accounting for and not delivering over as directed, the property, or its proceeds, that came into his custody as receiver.

The proofs submitted do not establish the claim of the appellant, that the order requires the payment of $100 more than is due. The adjudication is, in effect, that the lien of the respondent, after deducting $100 from the aggregate of the several amounts reported in his favor is $5,237.80, not $5,137.80, as claimed by the appellant.

The order appealed from should be affirmed.

Van Vorst and Freedman, JJ., concurred.


text:
    LEWIS SIMMONS, et al., Plaintiffs and Respondents, v. JULIUS KAYSER, Defendant and Appellant.

      Decided January 7, 1878.
    pleading, —landlord and tenant.
    In an action brought by the lessors against the lessee of certain premises for one quarter’s rent, the lessee, defendant, alleged in his answer that the plaintiffs, with the intent of inducing- defendant to accept the lease, declared, or falsely represented to the defendant, that the plaintiffs’ lease of the premises expired May 1, 1876, whereas they well knew their lease expired February 1, 1876 ; that defendant accepted the lease relying upon these representations, which were made by plaintiff with intent to defraud defendant into accepting this lease; that defendant went to great expense, etc., and was obliged to move out of the premises February 1, 1876, and rent a new store at an advanced rent, at great expense and loss of custom, to his damage, &c. Held, that this defense was insufficient as a bar to the plaintiffs’ claim; that the question of fraud was not raised, as there was no allegation that defendants were deceived, by the alleged fraudulent representations ; that such allegation cannot be supplied by inference or presumption (Lefier v. Field, 51 N. Y. 621); that the defense is also insufficient, in not alleging that defendant was obliged to move, &c., on account of the alleged fraudulent representations, and in omitting to allege any damage therefrom.
    The above allegations were designated in defendant’s answer “a first defense.” Held, that the defendant could not afterwards be allowed to insist that they constituted a counter-claim, and thus mislead bis opponent, there being an omission in the answer to intimate in any way that the defendant intended so to do (Bates v. Rosecrans, 37 JV. Y. 412).
    Curtis, Ch. J., and Sanford, J.
    Appeal from an order sustaining a demurrer to the first defense stated in the defendant’s answer. The facts are sufficiently stated in the opinion of the court.

      Lewis Sanders, of counsel, for appellant, among other things, urged :
    —I. It may be conceded for the . purposes of this case, that the answer does not set up a defense in bar of plaintiffs’ claim. It is a counterclaim. The learned judge below sustained the demurrer because the answer was called a defense, and not a counter-claim. It has been expressly decided that such misnomer—if such it be—is not an objection of any validity (Springer v. Dwyer, 50 N. Y. 22).
    II. It only remains to be seen whether the facts alleged constitute a counter-claim (Isham v. Davidson, 50 N. Y. 22). An examination of the authorities will show that the case at bar comes within the rule laid down. In Taylor v. Guest (58 N. Y., at foot of p. 266), the court say:—“ There is an absence in this case of any finding that the plaintiff relied upon the false representations.” The answer here alleges a reliance. In Lefler v. Field (52 N. Y. 622), the court says there was no allegation of an “ intent to deceive,” or that the agent was deceived—that is, relied upon the false representations. The answer here alleges, a false representation, with the intent to induce the making of the contract, and with the intent to defraud defendant, and, an acceptance by defendant in reliance upon said representations. The case of Meyer v. Amidon (45 N. Y. 170), and Oberlander v. Spiess (45 N. Y. 177), demonstrate that all the elements of fraud are alleged in the answer necessary to constitute a cause of action. Moore v. Rand (60 N. Y. 211), is a direct authority both in support of the counter-claim and the right to hold plaintiff for damages for fraud without rescinding the contract.
    III. Eviction not necessary to be shown ; may aver a paramount title in existence at time of lease (Grannis v. Clark, 8 Cow. 42). The answer and reply show actual eviction and paramount title.
    IV. Rescission on ground of fraud not necessary to enable party to recover for damages caused by fraud (Van Epps v. Harrison, 5 Hill, 63).
    V. Subsequent dealings under the contract after knowledge will bar rescission of the contract. But in the answer no dealings subsequent to the discovery of the fraud are alleged.
    VI. To enable a party to claim a rescission, he must restore, or offer to restore, all he has received under the contract. But the defendant has received nothing but the premises, which were taken away by paramount title. There is nothing to restore.

      R. W. Huntington, of counsel, for respondent, among other things, urged :
    —I. This court has held that whatever is necessary to constitute a defense, whether partial or total, must be averred as well as proved, and that averment is necessary, even where the existence of the fact in question may be presumed from the existence of other facts (Van De Sande v. Hall, 13 How. Pr. 460).
    II. An antecedent fraud, by which one is induced to enter into a contract to his damage, is, when properly pleaded, good as a counter-claim, and nothing else. This kind, of grievance is simply ground for an action of deceit, and is properly a counter-claim in an action upon the contract (More v. Rand, 60 N. Y. 212). Apart from the insufficiency of this new matter as a defense or counter-claim, it is a fatal objection to it, as a counter-claim, that it “ does not purport to be a counter-claim. It designates itself as a ‘ further dedefense’ simply, and there rests. No particular form of words is necessary to make a pleading a counterclaim. The ordinary and most satisfactory form of giving that information is by a statement that the pleading is a counter-claim, or by a prayer for relief. The present pleading, however, contains no words that would have justified the plaintiff in supposing that any personal judgment was sought against him, and in preparing for that emergency” (Bates v. Rosekrans, 37 N. Y. 412).
    III. The only allegation savoring of an eviction is in these words: “that on February 1, 1876, the defendant was obliged to move out of said premises.” The declaration may be true without Showing a' cause of action. The defendant may have been obliged to move out of the premises for a .variety of causes, of which no court can take judicial notice (Grannis v. Clark, 8 Cowen, 136). The court will not aid a pleader who omits a material allegation, the presumption being he could not make it (Hofheimer v. Campbell, 59 N. Y. 269).
    IY. The only allegation in the defense as to the defendant having been influenced by the alleged representation, is “that defendant accepted said lease, relying upon said representations.” This is not enough (Taylor v. Guest, 58 N. Y. 262). If the defense had alleged that the plaintiffs, “by falsely and fraudulently representing that their lease expired on May 1, 1876, induced the plaintiff to accept the lease in the complaint mentioned,” the precedents would have been complied with (§ 2, Chitty’s Pleading, *680, *688). The defense does not raise an issue of fraud, because it fails to allege that the defendant was in fact deceived by the alleged fraudulent representations. All the precedents formally alleged that the complaining party was deceived in fact (Lefler v. Field, 52 N. Y.)
    Y. For the reason stated in Grannis v. Clark, and Lefler v. Field, supra, the court cannot turn this defense into a valid allegation of counter-claim, and thus sustain it as such. Treated as a counter-claim, it does not allege facts sufficient to constitute a cause of action (Co. Pro. § 150, subdv. 1; C. C. P. §495, subdv. 5). But the defendant having compelled us to deal with this part of the answer as a bar, it would be unduly favoring him to turn it into a counter-claim, and would be putting us out of court for not having replied to it, unless leave were given to reply nunc pro tunc. Besides, turning it into a counter-claim would be introducing a new cause of action, and sustaining the demurrer to it as a defense (Edgerton v. Page, 20 N. Y. 284).
    VI. The reply shows that the plaintiffs innocently forgot that their lease expired February 1, 1876, and themselves notified the defendant, who thereupon did not rescind, but continued in possession under a new understanding. A party seeking to rescind a contract must act at once when the cause is discovered ; if he goes on under the contract or negotiates, he loses the right to rescind (Lawrence v. Dale, 3 Johns. Ch. 23, 41; affirmed Ct. of Errors as McNevin v. Livingston, 17 Johns. 437). He must rescind not only at once but in toto (Wheaton v. Baker, 14 Barb. 594; Bruce v. Davenport, 1 Abb. Ct. App. Dec. 233; S. C., 3 Keyes, 474).
    VII. The cases show (particularly Bruce v. Davenport) that fraud is no defense, without rescission and restoration immediately upon its discovery. It is necessary to allege such restoration where the defense is rescission for fraud (Springer v. Dwyer, 50 N. Y.; Dubois v. Hennan, 56 N. Y. 674).
    VIII. The defense demurred to admits the indenture of lease dated March 18, 1875, and taking possession under it, and liability for the rent demanded ; but it represents, that “early in March” (of course prior to the lease) the lessor falsely and fraudulently represented that he had title until May 1, 1876. The counter- claim alleges that the indenture contained a covenant for quiet enjoyment. The defense does not contain this allegation; but it is unnecessary, because every lease implies a covenant for quiet enjoyment (The Mayor, &c. v. Mabie, 13 N. Y. 531). How, inasmuch as a covenant for quiet enjoyment extends to the possession only, and not to the title (Whitbeck v. Cook, 15 Johns. 483), a false representation by the lessor as to the duration of his own term is immaterial, provided he had title sufficient to put the lessee in possession of the' premises, and might perform his covenant for quiet enjoyment. Non constat but that his lease, although expiring on February 1, 1876, contained a right of renewal; or without suclj provision, non constat but that he might have protected the possession of his tenant by new terms with the landlord. This defense is defective, therefore, in not alleging that the damage set up was on account of the alleged false representation prior to the lease, that the plaintiff’s lease did not expire until May 1.
   By the Court.—Curtis, Ch. J.

—The plaintiff’s demurrer is on the ground, that the defendant’s first defense does not state facts sufficient to constitute a defense.

The action is to recover $875, rent for a quarter ending February 1, 1876. The answer contains two ■defenses, separately numbered and stated, the first of which it designates “ a first defense,” and the second of which it designates “a second defense and counterclaim.” Our consideration is confined to the first defense. The first defense is, that the plaintiffs, with the intent of inducing defendant to accept the lease, declared or falsely represented to the defendant that the plaintiff’s lease of the premises leased to the defendant, expired May 1, 1876, whereas they well knew their lease expired February 1, 1876 ; that defendant .accepted the lease relying upon these representations, which were made by plaintiffs with intent to defraud defendant into accepting the lease, and went to great expense in painting the inside of the premises for the purpose of carrying on the general importing ffincy goods business, for which purpose the premises were expressly leased. Also that defendant was obliged to move out of the premises, February 1, 1876, and rent a new store at an advanced rent, at a great loss of custom and- expense, to his damage $2,500.

This defense is insufficient as a bar to the plaintiff’s claim, and does not raise the question of fraud, as it omits alleging that the defendants were deceived by the alleged fraudulent representations. That the defendant was in fact deceived by such representations is the very gist of a defense of this character, and when not alleged, it cannot be supplied by inference or presumption (Lefler v. Field, 51 N. Y. 621).

This defense is also insufficient in not alleging that the defendant was obliged to move on February 1, on account of the alleged false representation, as well as in omitting to allege any damage therefrom.

At the argument, no point was presented by the appellant to sustain the position that this defense was sufficient as a bar to the plaintiff’s claim. On the contrary, it was urged on the part of the appellant, that it was a counter-claim, and was good as such..

If these alleged false representations, pleaded as a defense, are insufficiently pleaded as such, there is an obvious difficulty in construing the same allegations as constituting a good cause of action in the defendant’s favor against the plaintiff, and enforcing it as such. There is an omission in the answer to designate or intimate in any way that the defendant intended to make, what he there calls a first defense,” a counterclaim. If the defendant meant it for a counter-claim, he should have said so, and not called it something else. A defendant cannot thus mislead his opponent, and then take advantage of it, by insisting that it is a counter-claim, if the exigencies of the litigation render that construction of it desirable. The code contemplates no such anomaly in pleading, but intends that a plaintiff shall have a reasonable notice when a defendant makes a personal claim against him, so that he may have an opportunity to prepare for it at the trial (Bates v. Rosecrans, 37 N. Y. 412).

The order appealed from ~ should be affirmed with costs, but 'with leave to the defendant to amend the answer within twenty days on payment of costs.

Sanford, J., concurred.


text:
    PHILIP FRANKLIN, Plaintiff and Appellant, v. JULIUS CATLIN, Jr., et al., Defendants and Respondents.

      Decided January 7, 1878.
    STAY OF PROCEEDINGS.
    In the case at bar the plaintiff recovered a judgment against the defendants for damages caused by the unlawful taking, &c., of o plaintiff’s property, under an attachment issued in an action, brought by the defendants, in the supreme court, in which action the complaint was dismissed and an appeal taken. Pending this appeal the present action in this court was commenced, resulting in the judgment above-mentioned, from which the defendants have appealed, and stayed execution by an undertaking. Since such judgment in this court, the supreme court at general term has reversed the judgment at circuit, and ordered a new trial, thus restoring the attachment;
    Held,
    a proper case for an order staying plaintiff’s proceedings in the action in this court, until final judgment in the action in the i supreme court.
    Before Curtis, Ch. J., and Freedman, J.

      Appeal by the plaintiff from the order of the special term, staying his proceedings until final judgment in an action pending in the supreme court, wherein the defendants are plaintiffs and this plaintiff is defendant.

      Charles Wehle, for appellant.

      Erastus S. Ransom, for respondents.
   By the Court.—Curtis, Ch. J.

—The plaintiff in this action recovered a judgment for $2,467.04 against the defendants, for an alleged unlawful taking and detention of his stock of goods, by virtue of an attachment of the plaintiff’s property, in a suit brought by the defendants in the supreme court.

At the trial of the action in the supreme court, the complaint was dismissed, and the plaintiff appealed. Pending this appeal the present action in this court was commenced and brought to trial, resulting in the judgment above-mentioned against the defendants, and from which they have appealed and stayed execution by an undertaking. Since such judgment in the superior court, the supreme court at general term has. reversed the judgment at the circuit and ordered a new trial, thus restoring the attachment.

It is but just that the defendants, in the suit in this court, should have the protection of the attachment in the supreme court, if that was lawfully issued and proceeded upon, and not be prejudiced by the judgment upon the verdict at the circuit, which was afterwards reversed. The plaintiff in this court has the security of his judgment and the undertaking, during the stay awarded by the order appealed from, until the final judgment in the supreme court. It would be palpably erroneous to subject the defendants in this court to damages for their acts under an alleged void attachment in the supreme court, which attachment that court has, since the trial here, held to be valid, and to authorize the acts complained of as done under it.

The order appealed from is in accordance with the views often expressed, both of this court and the supreme court. “ The court which first acquires jurisdiction should dispose of the whole matter. Any other court in which subsequent proceedings are taken for the same purpose, should, as well from feelings of amity as from a desire to avoid a conflict of jurisdiction, restrain the further prosecution of the second action” (McCarthy v. Peake, 9 Abb. 164; Litchfield v. Smith, 7 Robt. 306).

The power of staying proceedings should be exercised in consistency with the due ■ protection of the legal rights of all parties, and with the spirit expressed in the opinions in the cases above cited.

The order appealed from should be affirmed, with costs.

Freedman, J., concurred.


author: By the Court.—Van Vorst, J.

text:
    FREDERICK P. SMITH, Plaintiff and Respondent, v. JOSEPHINE S. SMITH, Defendant and Appellant.
    APPEAL FROM ORDER.
    The consideration of the general term must be confined to the papers that the order states were read on the motion.
    If in fact papers not recited in the order were read on the motion, the defendant before appealing should have applied to the court to have the order amended in that respect.
    ALIMONY.
    The party entitled to the same payable in installments, by order of the court, can release and discharge her claim therefor, in full and in advance, for a stipulated sum ; and where such a release had been made, and subsequently the party making the same moved the court to set it aside, and on the hearing of the motion, no allegations were made of fraudulent practice, or artifice to induce the party to execute the release, nor facts appeared to impeach the honesty and good faith of the transaction, the court should deny the motion, and refuse to set aside the release.

      Decided January 7, 1878.
    Before Curtis, Ch. J., and Vah Vorst and Freedman, JJ.
    The action was for a dissolution of the marriage bond. On May 13, 1876, an order was' made at the special term, on the defendant’s application, that the defendant have sixty dollars to be paid to her or her counsel for the defense of this action, and that she be allowed the sum of §3.50 per week, as alimony herein.
    On June 26, 1876, the defendant signed and delivered to the plaintiff a receipt and release in writing-in the words following:
    Superior Court of the City of New York.
    Frederick P. Smith
    y.
    Josephihe S. Smith.
    Received New York, June 26,1876, from Frederick P. Smith, the plaintiff herein, one hundred dollars, the same being- paid to me in advance and at my request, and is in full of all alimony to which I am or may at any time hereafter become or be entitled to under the order of this court in this action bearing date 13th day of May, A. D. 1876 ; and in consideration thereof I hereby release and discharge said plaintiff from any further payment of alimony under said order or otherwise ; and I stipulate and agree that no application shall be made by me, or on my behalf, at any time hereafter, for alimony or expenses in this action, and that an order maybe entered in this action at any time by plaintiff discharging him from all further payments thereof.
    Josephine S. Smith.
    A motion was afterwards made by the defendant at special term for an order setting aside the release, which was denied.
    From this last order this appeal is taken.

      Hal Bell, counsel, for appellant.

      W. E. Birdsall, counsel, for respondent.
   By the Court.—Van Vorst, J.

—The order from which this appeal is taken, recites that the papers read on the motion to set aside the release, were the petition of the defendant’s attorney, notice of motion, and the affidavit of John S. Woodford. We must be confined in considering this appeal to those papers.

If other papers were in fact used on the motion, not mentioned in the order, before appealing the defendant should have applied to have the order in that respect amended.

But in the form in which the matter comes before us, we are to assume that the order correctly states the papers used on the motion.

There is no allegation that the defendant was induced by any fraudulent practice or artifice to execute this release.

In the absence of such allegations the presumption is that it was voluntarily executed, and that it was for the defendant’s advantage to receive the sum of $100 at the time in advance, and in full, of all alimony to which she might at any time become entitled, under the order of May 13, 1876.

At the time this money was paid a small amount of alimony onl'y had accrued. It might be that from death, or other legal cause, thereafter arising, the defendant’s claim might suddenly terminate. The allowance was only temporary, and it might be that on final judgment she would not be entitled to it.

It was competent for her to agree to take a gross sum in lieu of all claims for alimony under the order.

As there is no fact to impeach the honesty or good faith of the transaction, the judge before whom the order appealed from was made, was justified in refusing to set the release aside.

A further construction of the release may, however, raise the question whether or not anything was released except alimony provided for in. the original order.

The rule indicated in Jackson v. Stockton (1 Cow. 122), that the portion of the release in respect to “ expenses in the action,” is qualified by the recital with respect to “alimony,” in the former part of the release.

The order appealed from is affirmed without costs, and without prejudice to the defendant’s right to apply by motion for the payment of such expenses in the action as she may be entitled to, in order that she may bring the action to a close.

Curtis, Ch. J., and Freedman, J., concurred.


author: By the Court.—Vah Vorst, J.

text:
    CHARLES OFFINGER, et al., Plaintiffs and Respondents, v. DAVID R. DE WOLF, Impleaded, &c., Defendant and Appellant.

      Decided, January 7, 1878.
    PARTITION.
    PBACTICE IN CASES OB, INCLUDING INTEELOCUTOBY PBOOEEDINGS AND FINAL JUDGMENT.
    The decision of the general term in this case substantially approves of all the proceedings in the action in detail, to and including final judgment; and therefore, reference is made to the statement of the case, and the opinion of the court,, for the numerous points involved therein.
    Before Curtis, Ch. J., Van Vorst and Sanford, JJ.
    Appeal from an order of Freedman, J., denying, with costs, a motion to vacate a judgment for irregularity.
    The plaintiffs are children of the late Johanna Christian Offinger, who, upon his death, left them, by will, certain real estate in the cities of ¡New York and Hoboken, subject, however, to the life estate of their mother, his widow.
    She afterwards died intestate.
    At the request of the plaintiffs, defendant, De Wolf, thereupon took out letters of administration, upon the estate of the late Mrs. Offinger.
    Plaintiffs, at about the same time, conveyed to Mr. De Wolf, by quit-claim deed, all the real estate devised to them by their deceased father, and received in return a declaration of trust, wherein it was stated that the real estate so conveyed, was to be held by the said defendant, not as his own, but for the objects, trusts and purposes mentioned.

      Mr. De Wolf accordingly proceeded to act as such administrator and trustee.
    On April 27, 1875, plaintiffs began this action against De Wolf, Wenzel Hruza (husband of a deceased daughter of the late Johanna Christian Offinger), and John, Fredericka, and Maria Hruza (infant children of the said Wenzel Hruza), setting up the interests of the' several parties to the action in the real estate above-mentioned ; also the execution of the quit-claim deed and declaration of trust.
    It was further alleged, that there were certain irregularities in the execution of the instruments mentioned, and that Mr. De Wolf had been guilty of misconduct in his dealings with the plaintiffs.
    The complaint prayed for a partition of the real estate, and the appointment of a receiver of the property, rents, and money belonging to the plaintiffs during the continuance of the litigation ; for an injunction restraining De Wolf from interfering with the real estate or its proceeds; that De Wolf might be compelled to account with plaintiffs, concerning the premises and the trusts. “ And that the defendant, De Wolf, may be adjudged to be personally responsible for any losses which the plaintiffs may have sustained by breaches of the trust aforesaid.”
    ‘ ‘ And that plaintiffs may have such other or further relief in the premises as may be just and proper.”
    The defendant, De Wolf, answered such of the allegations of the complaint as affected him.
    On November 4, 1875, the cause came on for trial before Freedman, J., at special term.
    An interlocutory judgment was entered, stating certain facts and conclusions of law, and referring it to Henry Wehle, Esq., to take proof of the interests of the several parties in the real estate, and the condition of the premies ; and also to “ take a,nd state an account of the rents of the premises mentioned and described in the complaint, received by David R. De Wolf, and the disposition thereof by him.”
    By the decree “It was further ordered that the question of costs, as well as all other questions, be reserved until the coming in of the report and hearing for further directions.”
    Having taken proof as directed, the referee reported the same to this court.
    Meanwhile, the defendant, De Wolf, had accounted as administrator.
    It appeared, upon examination before the surrogate, that Mr. De Wolf had mingled the moneys arising from ¿the rents of the real estate with those which were the proceeds of the late Mrs. Offinger’s estate, and in making payments to the several plaintiffs had not discriminated between the different funds. And the surrogate found that defendant had paid to several of the plaintiffs amounts of money largely in excess of their respective shares in their late mother’s estate, and that this excess was properly a charge upon the real estate.
    Defendant then applied to the court for leave to set up these facts by way of supplemental answer.
    An order was made granting the relief asked for, and referring the matter again to Mr. Wehle, and directing “that upon the coming in of the supplemental report, the action may be noticed for final hearing and determination at a special term of this court.”
    After the supplemental report came in, the cause was regularly noticed for trial, and was brought on before his Honor Judge Sanford at the June term.
    After the trial, and without procuring from the court any written findings of facts or conclusions of law, the plaintiffs- entered a final judgment.
    Defendant DeWolf thereupon moved to vacate the judgment for the irregularities mentioned in the notice of motion.
    The motion was denied, and the defendant appeals.

      Erastus Cooke, of counsel, for appellant, urged :
    —I. It was irregular to enter judgment, without having first procured and filed a written decision by Mr. Justice Sabfobd, containing a separate statement of the facts found, and the conclusions of law. This was necessary under the old, and is required by the new Code of Procedure (Old Code, § 267; New Code, §§ 1022, 1228; Wright v. Sanders, 28 How. Pr. 395; Van Steenburgh v. Hoffman, 6 Id. 492).
    II. Such a decision as the law requires, is necessary in order that the defendant may present the case to the appellate court. The only means for reviewing the decision at the trial, is by excepting to the facts found, and the conclusions of law. Here is nothing to which we can except (Bridger v. Weeks, 30 N. Y. 329; Leland v. Cameron, 31 Id. 115; Doty v. Carolus, Id. 547).
    III. The plaintiffs’ argument is, that in view of the reference to Mr. Wehle, and his report, there was nothing for the court at special term to try, and hence, no written decision containing findings and conclusions was required. This is a fallacy. 1st. It is only upon the report of a referee appointed to hear and determine the whole issue, that judgment may be entered (Code of Pro. [old] § 272). Where the referee is merely to report the facts, the report has only the effect a special verdict (Id. § 272). In such case the judgment is left to the court (Id. § 260). 2nd. Here the court, in the first instance, found certain facts, and referred other specific questions, at the same time stating, that “ the question of costs as well as all other questions,” are reserved until the coming of the referee’ s report. This report, then, operated as a special verdict upon the questions of fact referred, and no further. The second order was that 'the referee report upon a single question, and that ‘ upon the coming in of the supplemental report, the action may Toe noticed for final hearing and determination(N. B.—The words “ to hear and determine,” in this order, are surplusage, inconsistent, extra-judicial and void. The issue made by the supplemental answer was simply as to certain payments alleged by De Wolf to have been made by him. This only was referred, and it is too plain for argument, that a referee appointed to pass upon one of several questions, cannot “ hear and determined) 3rd. It follows that after the reports were both before the court, and the cause was ready for a final hearing, numerous questions (i.e., the alleged misconduct of the trustee, his right to costs, and other issues raised by the pleadings), were still undetermined. And even as to the facts actioally found by the referee, there are no conclusions of lato stated. This the cotirt was bound to do, and no judgment could properly be entered until that duty had been discharged.

      Benjamin T. Kissam, of counsel, for respondents, urged :—
    I. The issues of fact were tried by the court, in ¡November, 1875.
    Its decision was then given, containing a statement of facts and conclusions of law (See §§ 250, 252, 267 of Code of Procedure). This decision was filed, and in pursuance of it, and the order of the court entered thereon, the reference as to title, and as to the rents received and disbursed by De Wolf proceeded.
    II. The report of the referee was made in August, 1876, and no exceptions being taken, it became absolute after eight days (Rule 39).
    III. The court in March, 1877, allowed the defendant De Wolf to set up certain alleged payments which he claimed were not allowed him, either in his account- , ing before the surrogate, or by the referee in this action, but required him to proceed with great despatch before the referee, and pay the expense out of his own private moneys.

      IV. The order of reference was limited to “ such payments as were disallowed by both the surrogate and the referee, and were made in good faith, and for the allowance of which clear equitable grounds exist.” The referee reported payments to some five of the plaintiffs, in the aggregate amounting to $2,177.58, which was nearly the full amount claimed. There was no exception taken to this finding of the referee, and to that extent the report became absolute under the rule (see Rule 39).
    V. The material issues in the action were settled in November, 1875. The report- of the referee in August, 1876 (so far as De Wolf was concerned), not excepted to, settled the account between the plaintiffs, the Hruzas and De Wolf. The second report of the referee, in May, 1877, made a material deduction in De Wolf’s favor, from the amount charged against him in the first report, to which he did not except, and plaintiffs did not except, and that under the rule became absolute. The only question raised by the exceptions of the defendant De Wolf, was in respect to the interest on payments. This was a question of law.
    VI. The question of interest being disposed of, there was nothing left to be done by the court but to settle the form of the judgment. It was unnecessary and improper for the court to make any decision containing the facts found, and conclusions of law. The provisions contained in the “ Code of Civil Procedure” have no application to the case (see §§ 1022, 1228).
    VII. If any irregularity has occurred the judgment is not affected thereby, and should not be disturbed (See Code of Civil Procedure, § 721, subds. 11, 12, also § 722).
   By the Court.—Vah Vorst, J.

—This is an appeal from an order denying a motion to vacate a judgment for an alleged irregularity. The action, which is in partition, came on to be tried before the Hon. John J. Freedman, at a special term of this court, November 4, 1875, without a jury.

The learned judge determined the issues, and made his decision thereon in writing, finding certain facts and conclusions of law.

But he directed a reference to a referee named by him to take proof of the interests of the parties, and to report whether the premises were so situated as that an actual partition could not be made. He also directed the referee to ascertain the liens upon the premises, and to take an account of rents, &o. The question of costs, as well as other questions, were reserved until the coming in of the referee’s report.

After such finding of facts, which disposed of all the issues, no other findings of fact were necessary to enable the defendant to obtain a review of the judgment finally entered in the action.

The further proceedings in court in the action, would be founded upon the referee’s report upon the matters referred to him.

The findings of facts and conclusion of law, the result of the trial of November, 1875, could have been excepted to, as well as the referee’s report. These latter exceptions could be disposed of by the court, as it appears they were, when application was made for a confirmation of the referee’s report. And the appeal from the judgment and order of confirmation would bring up for review all the exceptions.

The matter contained in the supplemental answer, which was allowed to be filed, presented no new issue, requiring additional findings of fact by the judge. The matter involved in the supplemental answer, which affected the accounts of one of the parties, was also referred to the same referee, and was passed upon by him, and was the subject of adjudication, when the report was before the court for confirmation.

We fail to discover any irregularity in entering up the judgment without findings and conclusions other than those made by Judge Freedman. If exceptions have been taken to such findings and conclusions, and to the order or judgment of confirmation of the referee’s report, the defendant can raise all legal objections upon the appeal from the judgment.

The question of costs was determined by the judge, by the order made when the report was before him on the final hearing. That question was then properly before him upon the findings and conclusions of Judge Freedman and the referee’s report.

The order appealed from should be affirmed with costs.

Curtis, Ch. J., and Sanford, J., concurred.