author: Bapallo, J.

text:
    Henry Van Aernam, Respondent, v. George Bleistein, as President, etc., Appellant.
    In an action brought against defendant as "president of a company named, the complaint alleged that said company was a joint-stock company or association duly organized under the laws of this State. Plaintiff put in evidence a stipulation signed by defendant’s attorney, admitting for the purposes of the trial that said company was a joint-stock company as alleged in the complaint, and that defendant was its president at the time of the commencement of the action. Held, that the fair construction of the stipulation, taking it in connection with the complaint, and having reference to the statutes in relation to joint-stock companies (Chap. 258, Laws of 1849; chap. 455, Laws of 1851; chap. 153, Laws of 1853; chap. 245, Laws of 1854) is that it was intended to concede that the action was in proper form, as authorized by the act of 1849 (§ 1, chap. 258, Laws of 1849), against the defendant as president of the company, and that, therefore, a motion for a nonsuit on the ground that it did not appear that the company was a joint-stock company, consisting of seven or more members, was properly denied.
    An action for libel is maintainable against such a joint-stock company, which publishes a newspaper in which the libel is contained.

      It seems the officers of the company, or the publishers or editors employed by it, have the same power, when acting within the scope of their authority, to bind the company and all the associates, which an ordinary partner has to bind the firm and his copartners.
    In such an action the alleged libelous,article, which was published at a time when plaintiff was a candidate for an office, charged him with mal and corrupt conduct as commissioner of pensions, which office he had previously held. At the conclusion of the trial defendant’s counsel stated that it was not claimed on the part of the defense that there' was any thing wrong in plaintiffs conduct in the pension office. Plaintiff’s counsel thereupon rested and the court charged that there must be a verdict for plaintiff for nominal damages at least. Defendant had previously moved for a nonsuit, but not upon the ground that there was no evidence of malice. Defendant’s counsel excepted to the charge, and sought to sustain the exception here upon the ground that the question of malice should have been left to the jury. Held, that the objection came too late; that if defendant had desired to go to the jury on that point, he should have made the request or should have stated the ground of exception to the charge at a time when it would have been in the power of the court to correct it, in the respect complained of. .
    (Argued February 10, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made April 5, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, sub nomine Van Aernam v. McGune, 32 Hun, 316.)
    This was an action for libel brought against the defendant as president of the “ Courier Company,” which company, the complaint alleged, “ was and now is a joint-stock company or association duly formed and organized under and by virtue of the laws of the State of New York,” and engaged in the publication of a newspaper in which the alleged libelous articles were published.
    The facts so far as material are stated in the opinion.

      John G. Milburn for appellant.
    .The motion for a nonsuit should have been granted, because the plaintiff failed to prove that the Courier Company consisted of seven or more shareholders or associates. (Austin v. Searing, 16 N. Y. 112; Lind. on Part. 2-14; 2 id. 1084; Laws of 1849, chap. 258, § 5 ; Laws of 1854, chap. 245, § 3; Whetherhead v. Allen, 4 Ct. App. Dec. 628; Bk. v. Vanderwisher, 74 N. Y. 234; Tiffany v. Williams, 10 Abb. Pr. 204; Tibbetts v. Blood, 24 Barb. 650.) It was error to charge the jury that there must be a verdict in favor of the plaintiff for nominal damages at least. The question of malice should have been left to the jury as essential to the liability of the defendant. (Hamilton v. Eno, 81 N. Y. 116.)

      C. D. Van Aernam for respondent.
    Although the pleader does not explicitly say that the company consists of seven or more stockholders, he has, by what he does allege, brought the defendant clearly within the acts relating to such association. (Laws of 1849, chap. 258; Laws of 1851, chap. 455; Lorillard v. Clyde, 86 N. Y. 384; Laws of 1875, chap. 508.) Defendant, so far as this question is concerned, is a corporation. (Laws of 1849 and 1351, supra; Laws of 1854, chap. 245 ; Laws of 1867, chap. 289; Woodbury v. Merch. U. Ex. Co., 50 Barb. 157; Wescott v. Fargo, 61 N. Y. 542.) Defendant has waived all objection and submitted himself and those he represents to the jurisdiction of the court by appearing generally in the cause. (McCormick, v. Penn. C. R. R. Co., 49 N. Y. 303 ; Code of Civ. Pro., §§ 488, 489, 499; White v. Spencer, 14 N. Y. 247; Reynolds v. Loundsbury, 6 Hill, 534; Howell v. Mills, 7 Sandf. 194; 56 N. Y. 226; Trustees of C. Academy v. McKechnie, 90 id. 630.) The Courier Company in its collective capacity is amenable to an action for libel. (Townshend on Slander and Libel, §§ 119,265; Thomas v. Rumsey, 6 Johns. 26; Code of Civ. Pro., § 3347, subd. 11; L. W. c& B. R. R. Co. v. Quigley, 21 How. [U. S.] 202; Whitfield v. S. E. R. Co., 1 E. B. & E. 115; Samuels v. Ev. M. Ass., 9 Hun, 288; S. C., 75 N. Y. 604; Dodge v. Bradstreet Co., 59 How. 104.) The allegation as to the membership of seven or more, claimed to be essentially necessary, is a mere averment of the capacity of the defendant, and is no part of the cause of action. (Fox v. Erie Preserving Co., 93 N. Y. 54; Woodbury v. M. Union,
      50 Barb. 157; Westcott v. Fargo, 61 N. Y. 542; Sandford v. Sup'rs of N. Y., 15 How. 172.) The court properly rejected defendant’s offer to show the publication in other newspapers of libelous matter similar to that which he had published ; it was incompetent for any purpose. (Matson v. Buck, 5 Cow. 499; Cole v. Perry, 8 id. 213; Inman v. Foster, 8 Wend. 602; Kennedy v. Gifford, 19 id. 296; Hotchkiss v. Oliphant, 2 Hill, 510; Sandford v. Bennett, 24 N. Y. 20; Daly v. Byrne, 77 id. 182; Willover v. Hill, 72 id. 36.) There was nothing in the case tending to impart to the defamatory matter the character of privileged communications, and the court in effect so determined, as was both its right and its duty. (Hamilton v. Eno, 81 N. Y.,116.)
   Bapallo, J.

The only point made on the part of the appellant on the trial of this action was that the action could not be maintained against the defendant as president of the Courier Company.

Prior to 1849 all the members of an unincorporated joint-stock company or association were necessary parties to an action by or against such company or association, whatever the number of its members might be. (2 Lindl. on Part. 1084.) Such an association could not sue in the name of any officer of the association or in the name of its trustees.

By the Laws of 1849 (Chap. 258, § 1) it was provided that any joint-stock company or association, consisting of seven or more sha/reholders or associates, might sue or be sued in the name of the president or treasurer, for the time being, of such joint-stock company or association, and that suits so prosecuted should have the same effect on the joint rights or property of the company as if prosecuted in the names of all the shareholders or associates. The only manner in which the question was raised in this case was by motion for nonsuit at the trial.

The plaintiff put in evidence a stipulation signed by the defendant’s attorneys, whereby it was admitted, for the purposes of the trial, that the .Courier Company was a joint-stock association as alleged in the complaint, and that the defendant was its president at the time of the commencement of this action, and that said company published the Buffalo Courier and had done so for five years last past.

The defendant now claims that its stipulation was ineffectual, as it does not state' that the company consisted of seven or more shareholders or associates, but only that it was a joint-stock association as alleged in the complaint; and that by reference to the complaint it appears that the allegation therein was that it was a joint-stock company or association, duly formed and organized and then existing under and by virtue of the laws of the State of New York,zwithout stating the number of associates.

We think that the fair construction of the stipulation is that it was intended to concede that the action was brought in proper form against the defendant as president of the association, and to relieve the plaintiff from the necessity of producing proof at the trial of the organization of the association, and to be so understood by the counsel for the plaintiff. If not intended to have this effect it was of no avail for any purpose, as it would still have left the plaintiff subject to the necessity of preparing himself with proof of the organization, for he could not prove that the association consisted of seven or more members without pro ring the organization, and the membership of all the associates. To attach to it the silent reservation now claimed, and which could not have been contemplated by the parties, would make .it deceptive and misleading.

The stipulation, read in connection with the complaint, was an admission that the defendant was a joint-stock company or association duly formed and organized and then existing under and by virtue of the laws of the State of New York. This must be deemed to have reference to the statutes of .this State, and when it is considered that the act of 1849, under which this action was brought, and all other statutes of this State relating to joint-stock companies or associations, refer to companies or associations consisting of seven or more shareholders or associates (Laws of 1851, chap. 455 ; 1853, chap. 153 ; 1854, chap. 243), and that there are no statutes recognizing or referring to joint-stock companies composed of a smaller number of members, it is quite evident that such a company as is referred to in the statutes was intended.

The only other point raised on the motion" for a nonsuit was that the action was not of such a nature that it could be maintained. against a joint-stock association in the name of its president or treasurer.

Conceding that the Courier Company is not a corporation, but a partnership with some of the powers of a corporation, it is admitted that the association published the paper in which the libel was contained, and we can see no reason why it, and all its members, should not be responsible for á libel published by their authority. The officers of the unincorporated company, or the publishers or editors employed by it, have the same power, when acting within the scope of their authority, to bind the company and all the associates which an ordinary partner or an agent of a partnership has to bind the firm and the copartners.

A further point was raised on the argument of the appeal in this court, which does not appear to have been raised upon the trial, viz.: That the publication complained of was privileged, and there was no proof of actual malice. The plaintiff was, at the time of the publication, a candidate for the office of representative in Congress. lie had, at a former period, held the office of commissioner of pensions, and the publication of the defendant complained of, consisted of charges of mal and corrupt conduct 5f the plaintiff as such commissioner. These charges had been the subject of investigation by a committee of the house, and the proceedings of the committee were before the defendant and were largely drawn upon in the various articles which it published and which are claimed to be libelous, and parts of the testimony were referred to which tended to establish the charge of malconduct, while the plaintiff claims that the editor of the defendant who wrote the articles did not refer to the parts of the testimony and proceedings which exculpated him.

At tlie conclusion of the trial of this action, the counsel for the defendant stated to the court that it was not claimed on the part of the defense that there was any thing wrong in Dr. Van Aernam’s conduct in the pension office, and the plaintiff’s counsel then stated that upon the defendant’s statement the plaintiff would rest, and thereupon the court charged the jury that there must be a verdict for the plaintiff for nominal damages at least. To this charge the defendant’s counsel excepted, and the jury rendered a verdict for the plaintiff for $2,000 damages.

The defendant’s counsel now raises the point that the charge was erroneous because the judge should have submitted the question of malice to the jury.

We think this objection comes too late. There was no request to submit that question to the jury, nor was it claimed on the motion for a nonsuit that there was no evidence of malice. The nonsuit was asked for on different grounds. If the defendant desired to go to the jury on that specific point he should have made the request, or should have stated the ground of exception to the charge at a time when it would have' been in the power of the court to correct it in the respect complained of. The court evidently assumed to decide, upon the evidence, that the publications were not fair criticisms on the official conduct of the plaintiff, and, therefore, that they were not privileged.

Without deciding whether or not, under the evidence in the case, it was within the province of the court to pass upon that question, we are of opinion that if the defendant deemed himself entitled to have it left to the jury, he should have made the claim at the trial.

The judgment should be affirmed.

All concur, except Rug-eb, Ch. J., not voting.

Judgment affirmed.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    Leonard A. Merritt, Respondent, v. Maurice Fitzgibbons et al., Appellants.
    In an action to recover damages for injuries alleged to have been caused by defendants’ negligence, these facts appeared: Plaintiff, while passing defendants’ store in the city of New York, stepped upon an iron cover to a coal hole which was slippery with snow j ust fallen ; he fell and in falling hit the leg of a horse, one of a team attached to a truck belonging to defendants and standing on the sidewalk. The horse raised his foot and in putting it down struck plaintiff's ankle and broke it. The street was narrow and occupied partly by the tracks of a street railroad. There was not room for a truck to stand on the street between the sidewalk and the nearest track, • The other horse ‘ of the team was standing on the street, leaving just room for cars to pass. The team was in charge of its driver, the horses gentle, and neither stirred at the time except as above stated. Sufficient space was left on the sidewalk for wayfarers to pass. By a city ordinance it was made lawful for an occupant of a store on any street “in which the rails of any railroad company are laid so close to the curbstone ” as to prevent him from keeping a cart or other vehicle in the carriage-way in front of his store without interference with the passage of cars, “ to occupy with such cart or other vehicle ” such portion of the sidewalk as shall be necessary, provided sufficient space be left for the passage of pedestrians. Held, that the evidence failed to show any negligence on the part of. defendants and that a refusal to non-suit was error; • that the permission given by the ordinance applied as well to the horses attached as to “ the cart or other vehicle,”
    (Argued April 13, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 16, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the material facts are stated in the opinion.

      De Wiü G. Brown for appellants.
    The court erred in charging : “ It is for you to say from the evidence whether the team, at the time of the accident, was using more of the sidewalk than it was entitled to use under the ordinance, and whether under the ordinance there was sufficient space left for the passage of pedestrians. Their negligence depends upon that.” (Knupfle v. Knick. Icc Co., 84 N. Y. 491.)

      P. Q. Eckerson for respondent.
    If the horses occupied more of the sidewalk than was necessary, or more than they were entitled to under the ordinance, the defendants were clearly guilty of negligence, or a wrongful act. (Cuddeback v. Jewett, 20 Hun, 187; Woster v. Forty-second St. R. R. Co., 50 N. Y. 203.) The defendants violated the ordinance which says “ no persons shall suffer or permit to go, or lead or drive any horse upon any sidewalk in the city of New York,” etc. A violation of a city ordinance is some evidence of negligence to be submitted to the jury. (McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522, 531; Beisiegel v. N. Y. C. & H. R. R. R. Co., 14 Abb. [N. S.] 29.) The ordinance, which defendants claim permitted them to occupy the sidewalk, makes no mention of horses, and does not permit horses to be driven upon the sidewalk. (Clifford v. Dam, 81 N. Y. 52; Keefe v. City of Chicago, 1 West. Rep’r, 353 ; Ring v. City of Cohoes, 77 N. Y. 83; 29 Hun, 634; Ehrgott v. Mayor, etc., 96 N. Y. 283; Creed v. Hartman, 29 id. 591.)
   Danforth, J.

The action was for damages sustained by the plaintiff while attempting to pass along a sidewalk in front of certain stores occupied by the defendants, and known as Nos. 05 and 67, on the east side of Crosby street, in the city of New York. The material facts are as follows: On the last day of December, 1879, the plaintiff and his brother were at work on the west side of Crosby street, but it commenced snowing, and they left at half-past one o’clock. They crossed to the east side below the defendant’s stores, and going up they there found a team of horses and truck, and at that point, while passing, the plaintiff stepped upon the iron cover of a coal hole, slippery with snow, and fell under the horse nearest to him, touching its leg. The horse raised its foot at that instant, and then put it down, striking the plaintiff’s ankle and breaking it. The. sidewalk was seven feet and nine inches wide, the street a narrow one, and in part occupied by a double-track horse railroad; between the curbstone and track is five feet three inches, one foot of which is covered by the projecting car; the truck was seven feet eight and one-half inches wide. It and the horses belonged to the defendants, and on this occasion they were partly in the street and partly on the sidewalk, but in their customary place, and, from necessity, one horse being on the sidewalk, the other in the street, leaving just room for the cars to pass. The team was then in care of its driver; the horses were gentle, and at the time in question, except as above stated, neither stirred. Sufficient space was left on the sidewalk for wayfarers. ' This was testified to by the plaintiff and by the defendants’ witnesses; it was also practically demonstrated by the safe passage of many persons and there is no room for doubt that the plaintiff would have gone through uninjured except for the coal hole and its condition.

The plaintiff also put in evidence a city ordinance prohibiting, under az penalty, the going of any horse upon any of its sidewalks. The defendants, upon the other hand, both by answer and by evidence, relied upon an ordinance of the city which made it lawful for the owner or occupant of any store, or other building, on any street “ in which the rails of any railroad company are laid so close to the curbstone as to prevent the owner or occupant from keeping any such cart or other vehicle in the carriage-way in front of his place of business without interference with the passing of the cars of any such railroad company, to occupy with such cart or other vehicle during business hours so much of the sidewalk as may be necessary for such cart or other vehicle, provided that sufficient space be retained for the passage of pedestrians between the cart or other vehicle, so permitted to occupy such portion of the sidewalk and the stoop or front of every such store, warehouse or other building,” and by evidence which was not controverted showed that the street in question was situated as described in the ordinance.

On the trial the contention in behalf of the defendants was that there was no fault or negligence on their part, and even if there were, that there was contributory negligence on the plaintiff’s part in stepping upon the cover of the coal hole, and in going unnecessarily near the horses, and they moved the trial judge to dismiss the complaint. The motion was denied, and the defendants excepted. The learned judge then submitted the case to the jury upon both of these propositions, at the same time saying that the plaintiff had no right of recovery against the defendants by reason of the coal hole, or any incident to it; that they were responsible neither for it nor its condition. No exception was taken to the charge by either party, and the only question for us to consider is whether the evidence was such as in any view would justify a verdict for the plaintiff.

It appears that he was rightfully upon the sidewalk, and the jury might find as they did, that he was proceeding on his way with reasonable care and in a proper manner, without notice of any circumstance of danger which required extraordinary caution. But assuming this to be so, we are unable to find that the defendants neglected any duty or were guilty of misconduct toward him. It may be conceded that the plaintiff would not have been injured if the defendant’s horse had not been upon the sidewalk, and in ordinary cases its presence at that place would have been an obstruction and its owner answerable for the consequences, but both conditions of the ordinance last cited were satisfied by the circumstances of the case. The truck and horse were necessarily on the walk and sufficient space was retained for the passage of pedestrians between the cart and store. The evidence left no room for doubt as to either, and as the validity of the ordinance was unquestioned by the plaintiff at the trial, it furnished a complete answer to his action, unless as is now argued in his behalf, its permission is limited to a cart or other vehicle,” and does not include the animal by which the vehicle is drawn. The contrary was assumed by both parties and the court upon the trial, and it was we think the reasonable construction. The ordinance m one part speaks of “ driving " or£' backing the cart or vehicle,” “on the crosswalks,” “or onto the sidewalks,” implying of course a cart or vehicle drawn or moved in the ordinary way, and the same construction must apply to the other part — that now in question. It cannot be supposed that the owner of the cart would be expected to detach his horses, leaving. them in the street between the cart and the street car, while the cart itself was put in a place of safety. The ordinance is in substance a declaration that as the railroad encroaches upon the street, so certain vehicles in use therein, and the animals by which that use is made possible, may in prescribed cases encroach upon the sidewalk.

We think the exception was well taken, and for the error to which it points, the judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed.


author: Finch, J.

text:
    Thomas J. Pope et al., Respondents, v. George A. Porter et al., Appellants.
    The broker’s memorandum of a contract sale between the parties stated that plaintiffs had sold to defendants ‘ ‘ Scotch pig iron to arrive as specified below, * * * five hundred tons of Coultness pig iron * * * to be due here in April next; five hundred tons of Caulder’s pig iron * * * to be due here in March next.” Plaintiffs made default as to the Caulder’s iron but were ready and offered to perform as to the Coultness, which defendants refused to accept. In an action to recover damages, held, that plaintiffs were not entitled to recover; that the vendees were not compelled to accept a part performance in the inverse order of the contract, but only according to its terms, and as the plaintiffs had made default at the outset, defendants had a right to rescind the whole contract.
    (Argued April 13, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 19, 1884, modifying, and affirming as modified, a judgment in favor of plaintiffs, entered upon a verdict.

      This action was brought to recover damages for an alleged breach on the part of defendants of a contract of purchase and sale of a .quantity of pig iron.
    The substance of the contract, and the material facts are stated in the opinion.

      George F. Comstock for appellants.
    The seller of goods, to arrive by sea, must deliver the identical goods described in the contract, and cannot substitute other goods although of the same kind and value. In case of non-arrival within the specified time, the seller may reject them and cannot be required to accept other goods to which the contract has no relation, and he may rescind the whole contract. (Russell v. Nichol, 3 Wend. 112; Hill v. Blake, 97 N. Y. 216.) A single contract cannot be resolved into different and independent parts, and each part treated as if it stood alone, on the mere ground that it might be the subject of a separate contract. (De Beersky v. Paige, 10 N. Y. 537.; Crawford v. Crawford, 10 Johns. 253; Allard v. Greesert, 61 N. Y. 1; Cook v. Millard, 65 id. 357.) A statement descriptive of the subject-matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent, jipon the failure or non-performance of which, the party aggrieved may repudiate the whole contract. (Behn v. Burness, 3 B. & S. 751; Bowes v. Shand, 2 App. Cas. 455; Lowber v. Bangs, 2 Wall. 728; Davison v. Von Lingen, 113 U. S. 40; Mersey Co. v. Naylor, App. Cas. 434, 439.)

      W. W. Niles for respondents.
    It is competent to establish an excuse for the non-performance of a contract in point of time, by showing that the defendants specifically requested the delay, and such proof is not immaterial. (Kansas R. R. Co. v. McCoy, 8 Kans. 538.) The time of performance' of a written agreement may be extended by a subsequent agreement, by paroi. (Dillon v. Masterson, 39 N. Y. Sup. Ct. 133; Am, Cor. I. Co. v. Eisner, 39 id. 200; Oanal Co. v. Ray, 101 U. S. 522 ; Niblo v. Binsse, 8 Abb. Ct. App. Dec.) It was both material and competent to prove the amount realized on the sale of the iron after it had been established .that it was sold on notice and for the best price that could be obtained, and for its full market value. (Dustan v. McAndrew, 44 N. Y. 72.) Long before the time for the shipment or delivery of the “ Coltness” the defendants had relieved the plaintiffs by a positive refusal to receive any iron under the contract. (Dustan v. McAndrew, 44 N. Y. 72; Plympton v. Elevating Co., 55 id. 480; Blauvelt v. Baker, 58 id. 611; Skinner v. Tinker, 34 Barb. 333.) That the contract is divisible appears from its terms and is well settled. (Tipton v. Feitner, 20 N. Y. 423; Sawyer v. C. N. R. Co., 22 Wis. 403.) Even if the parties had some particular lot of iron in mind when the contract was made (which they did not) unless the delivery had been .confined to that by its terms, they were only required to deliver the same kind and quality. [Taussig v. Hart, 58 N. Y. 425; Levy v. Loeb, 85 id. 370.) In this case the iron having been refused on the specific ground that the defendants were entitled to the “ iron on the Pryor.” Ho other objection is now available. (Carman v. Pultz, 21 N. Y. 547; Duffy v. O'Donovan, 46 id. 223; Coleman v. First Nat. Bank, 53 id. 392.)
   Finch, J.

The material terms of the contract between the parties, as written in the broker’s memorandum, are as follows : “ Sold to the following named parties Scotch pig iron to arrive as specified below. * * 500 tons of Coltnesspig iron at 36 per ton for shipment, to be due here in April next. 500 tons of Caulder pig iron at 34 per ton for shipment, to be due here in March next. Payable on arrival here by four months’ note, indorsed by the above-named parties, with interest added at 6 per cent.”

A broker often, in the haste of business and in the effort at brevity, will draw ambiguous contracts, and the one before us 'is an instance and example of such want of care and accuracy. Whether it is an entire contract or divisible into two separate or independent agreements; whether it sold specific iron to be shipped at a precise time, or merely iron of the stipulated brand; and whether payment was to be made in installments by a four months’ note at each arrival, or by one note when all the iron had arrived, were some of the questions which the memorandum left open for dispute. In the litigation which ensued, the vendors recovered of the vendees for a refusal to accept both lots of the iron. On appeal the General Term decided that there could be no recovery for the Caulder iron, upon the ground that the plaintiffs were themselves in default, but that the contract was divisible, and a recovery could be had for the Coltness iron, as to which they were not in default. The judgment was, therefore, reversed, unless the plaintiffs should stipulate to deduct from their recovery the amount awarded on account of the Caulder iron, in which event the judgment as modified should be affirmed. The plaintiffs stipulated and contented themselves with the modified judgment. From that moment the adjudication as to the Caulder iron became indisputable so long as the General Term judgment should stand, and upon this appeal devolves upon the respondents, who seek to sustain that judgment, the duty of demonstrating that it can be correct consistently with the default adjudged by the same judgment as to the Caulder iron. By their stipulation the plaintiffs assented to the decision- against them in order to retain the balance in their favor, and, for the purposes of this appeal, must be held to concede that there was default as to the Caulder iron. Whether the consequent right of withdrawal from the contract extended to all the iron and to the entire contract in all its parts, or was limited simply to the Caulder iron is thus the only question presented for our consideration.

The contract, in its first sentence, certifies the sale of “ Scotch pig iron to arrive.” It specifies later the quantity and brands, and dates of arrival, but it remains one entire contract for the sale of one thousand tons of the iron, half of one brand and half of the other, one portion to arrive in March and one in April. The purchasers were individuals,. one representing a particular corporation and the others a different one, each of which needed the iron in some proportions for their manufacturing purposes. The parties might have bought separately, each taking a smaller quantity and according to their several needs, but they chose, as they had a right to do, to combine in a single purchase of the entire quantity needed by both. Payment was to be made by note at'four months, upon the arrival of the iron. If this means upon the final arrival of all the iron to be paid for by a single note, then there is no question that complete delivery of the whole purchase was a condition precedent to the right to demand payment. But the respondents insist that a note was to be given upon each arrival, and, therefore, that both delivery and payment were "to be in installments, and so the contract was in its nature divisible, and performance of any component part entitled the vendor to compensation for that part. If the construction of payment due upon each arrival be correct, the contract was “ divisible ” in the sense in which that .word is applied to cases of a particular character and depending upon peculiar circumstances. If the plaintiffs had shipped the five hundred tons of Oaulder iron for arrival in March, and it had been delivered to the defendants, who had accepted it, they would have been bound to pay for that iron irrespective of a possible or actual default thereafter as to the Ooltness iron. But this because of a part delivery on one side and a part acceptance on the other, which is in accordance with the contract and permitted by its terms. That doctrine, however, does not at all reach or cover a case like the one before us. Here there is a breach of the contract at the beginning; a failure to perform at the outset; and that breach justifies a rescission by the vendee. But a rescission of what ? Obviously, of the entire contract. It must be that or nothing, since there are not two independent and separate contracts, one of which may be broken without peril to the other, but there is a single contract which may be rescinded at the moment of a breach, so far as it remains wholly unperformed on both sides. The eases which seem to have misled the' court below are founded- upon peculiar equities growing out of the form of contract. They contemplate and require a performance in separable parts or divisions, and where the vendor delivers an agreed proportion, which the vendee accepts, and payment therefor becomes immediately due, the right to recover is at once complete, and is not forfeited by a later default. The contract in such case is called divisible or distributive, and the language is not objectionable if correctly understood and applied. The right of rescission or of abandonment, where such a contract has been wholly performed on one side as to one of its separable parts, and that performance accepted on the other is lost and cannot be regained, for the right to the payment reserved has fully accrued and does not depend upon further conditions. Practically, by the divisible form of the contract, and the joint act of the parties in delivery and acceptance, the earlier stipulation is cut off and separated from the later, but nothing of the kind is possible where the vendor is in default at the outset. The vendee is not compelled to accept a part performance in the inverse order of his contract, but only according to its terms, and where, at its initial point, the vendor is in default, the right to rescind or abandon belongs to the vendee, and necessarily and justly must apply to the whole contract remaining unperformed. Otherwise the one contract is split into two, each independent of the other. Substantially, this doctrine has been recently decided. (Nowington v. Wright, 115 U. S. 188.) The reasoning of that case seems to us accurate and decisive, and we follow it without hesitation. The order for a new trial, which we think it our duty to make, will leave open the questions of fact as to plaintiffs’ default.

. The judgment should be reversed and a new trial granted, costs to abide .the event.

All concur.

J udgment reversed.


author: Miller, J.

text:
    James B. Haynes, Respondent, v. James H. Rudd, Appellant.
    Although duress and undue influence was employed in procuring a contract for the payment of money and influenced the giving of it, and the party so executing it has been compelled to pay money on account thereof, he may not maintain an action to recover the same where the consideration of the contract arises upon or is any way affected by the compounding of a felony. The parties in such case are, notwithstanding the duress, in prvri delicto, and neither is entitled to relief from the courts.
    In an action to recover back moneys paid by plaintiff in payment of a promissory note given by him to defendant and transferred to a tona fide holder before maturity, the complaint alleged that the note was given to compound a supposed felony, i. e., a claim made by defendant that plaintiff’s son had stolen money from him, and that the note was extorted by threats of public charges against the son. After the court had charged in substance, that if the note was given simply to compound a felony plaintiff could not recover, he was requested but refused to charge “that if the compounding of a felony entered into and formed a part of the consideration of the note the plaintiff could not recover;” also, “that if the motive of the plaintiff in giving the note was in part for the purpose of compounding a felony, he would not he entitled to recover. Held error.

      Dunham v. Griswold (22 Week. Dig. 196); Turley v. Bdwcords (1 Week. Hep. 450); Foley v. Green (21 C. L. J. 175); Williams v. Bayley (35 L. J. Ch. 717), distinguished.
    (Submitted April 16, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the G-eneral Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1883, which affirmed a judgment in favor of plaintiff entered upon a verdict. (Reported below, 30 Hun, 237.)
    The nature of the action and the material facts are stated in the opinion.
    The case is reported on a former appeal in 83 N. Y. 253.

      T. W. Collins for appellant.
    There must be some fraud or falsity in statements to constitute duress per minas. (Farmer v. Walter, 2 Edw. Ch. 601; Smith v. Rowley, 66 Barb. 502; Vosburg v. Brewster, 5 Alb. L. J. 198; L. M. Ins. Co. v. Meeker, 85 N. Y. 614.) Threatening to prosecute in a lawful way for an offense actually committed does not constitute duress. ( Vosburg v. Brewster, 5 Alb. L. J. 198; Knapp v. Hyde, 60 Barb. 80; Burnham v. Douglass, 10 Weekly Dig. 557.) If the defendant had actually executed the threat to prosecute the son he would have committed no wrong against any one; and whatever wrong can be attributed to defendant, if any, is that he agreed not to prosecute plaintiff’s son. (Lord v. Lindsay, 9 Weekly Dig. 70.) No case holds that threats of a lawful imprisonment or prosecution constitute duress or undue influence. (Rexford v. Rexford, 7 Lans. 6 ; Lord v. Lindsay, 18 Hun, 484; Harmon v. Harmon, 61 Me. 227; Eadie v. Slimmon, 26 N. Y. 9 ; Foshay v. Ferguson, 5 Hill, 154; Osborne v. Robbins, 36 N. Y. 365 ; Vosburg v. Brewster, 5 Alb. B. J. 198; 1 Bouv. Baw Dict. 514; Smith v. Rowley, 66 Barb. 502; M. L. Ins. Co. v. Meeker, 85 N. Y. 614; 6 Mass. 506.) Both parties were “in pari delicto” and cannot recover against each other. (Darmouth v. Bennett, 15 Barb. 541; Solinger v. Earle, 82 N. Y. 393; Condeman v. Hicks, 3 Lans. 108.) A party who gives a note for the express purpose of compounding a felony is a particeps criminis. (Sharp v. Wright, 35 Barb. 236 ; Solimger v. Earle, 82 N. Y. 393; Haynes v. Budd, 83 id. 25.) The court erred in refusing to charge the jury that if the. plaintiff’s motive in part in giving the note was to compound a felony he could not recover. (Sanderson v. Goodrich, 46 Barb. 616.)

      W. B. Mason for respondent.
    The parties to this action did not stand in pari delicto; the defendant took undue advantage of the plaintiff and his wife, advantage of the circumstances in which the plaintiff stood, surrounded as he was by his family; this operated as duress and undue influence to coerce and as the jury has found did coerce the plaintiff’s will, and destroyed the equality between the parties, and induced the plaintiff to give the note in question. (Dunham v. Griswold, 1 Ch. R. 305 ; 22 Weekly Dig. 296; Turley v. Edwards, 1 West. Rep’r, 450; Foley v. Green, 21 Cent. B. J. 175; 1 West. Rep’r, 12, 450 ; Williams v. Bayley, 35 L. J. Ch. 717; Story’s Eq. Jur., §§ 239, 300, 302; Foshay v. Ferguson, 5 Hill, 154; Eadie v. Slimmon, 26 N. Y. 9 ; Osborne v. Robbins, 36 id. 365 ; Solinger v. Earle, 82 id. 397; Haynes v. Rudd, 83 id. 253 ; Ingersoll v. Roe, 65 Barb. 346 ; Schoener v. Lessane, 36 Hun, 100 ; Bwrke v. Brown, 49 Ind. 573 ; Richards v. Vanderpool, 1 Daly, 71.) The rule in regard to duress and undue influence allows the father to plead the duress of a child, or a husband the duress of a wife, or a child the duress of a parent. (Harris v. Cormody, 24 Alb. L. J. 436 ; 131 Mass. 51; 82 N. Y. 399; 26 id. 9.) The court is not called upon to adopt the language of counsel in his charge if he has fully covered the proposition of law in his own language as requested. (Morehouse v. Yeager, 71 N. Y. 594.)
   Miller, J.

The plaintiff seeks to recover in this action the amount of a promissory note given by him upon the settlement of a claim by defendant, that plaintiff’s son, who was in defendant’s employ, had, at different times, stolen Ms money.

The complaint alleged that the note was given in order to compound, and settle a supposed felony or misdemeanor, and that thé said note was extorted from the plaintiff and his wife by threats of public charges against the character of their son, and that the note was executed in fear of the same. It was transferred by plaintiff before maturity to a bona fide holder, and plaintiff paid it.

, On a former appeal to this court in tMs action, it was held that where a person has voluntarily, i. e. without the coercion of force or threats, given his promissory note to compound a crime, and has been compelled to pay the same, it having been transferred to a bona fide holder for value before maturity, he cannot maintain an action against the one to whom the note was so given to recover back the moneys paid.

In the opinion of the court by Folger, Oh. J., the rule is laid down that if there was simply a compounding of felony, both plaintiff and defendant, on an equality, agreeing that the plaintiff should give his written promise to the defendant, and that, therefore, the defendant should give his oral promise to conceal the felony and abstain from prosecuting it, and withhold the evidence of it, then they were in pari delicto, and the law will leave them where it finds them, and it is said that to give the plaintiff any claim to recover, he must show that he was in such plight from the force or threats of the defendant as that he was in duress, and gave the note without being willing to, to escape from the predicament in which that force or those threats put him.”

Upon the last trial, which is the subject of review on this appeal, the case appears to have been presented by the plaintiff on the theory that threats were used, and duress and undue influence exercised by the defendant upon the plaintiff and his wife, by means of which the note was obtained, independent of the question whether the note was executed for the purpose of compounding a felony, and that thus a case was established against the defendant.

The plaintiff in this action insists that the facts establish that the parties did not stand in pa/ri delicto; that the defendant took undue advantage. of the plaintiff and his wife, of the circumstances in which the plaintiff stood, surrounded as he was by his family; that this operated as duress and undue influence to coerce, and, as the jury found, did coerce the plaintiff’s will and destroyed the equality between the parties and induced the plaintiff to give the note in question.

In none of the cases cited by the respondent’s counsel to sustain the position contended for was the. precise point presented whether the parties stood in pari delicto when the compounding of a felony entered into and constituted part of the consideration of the contract, and they, therefore, are not decisive of the question. (Dunham v. Griswold, 22 Week. Dig. 296; Turley v. Edwards, 1 West. Rep’r, 450 ; Foley v. Green, 21 Cent. L. J. 175; Williams v. Bayley, 35 L. J. Ch. 717.)

Whether the parties stood in pari delicto depends upon the fact whether the evidence proved that the note in question was-given for compounding a felony. If the testimony established that such was the case, then both parties must be regarded as equally in fault, and the court will not lend its aid to either in enforcing a contract of such a character because it is illegal and void. While fraud, duress and undue influence employed in procuring a contract for the payment of money may vitiate and destroy the obligation created, and render it of no effect, and the party who has been compelled to pay money on account thereof may maintain an action to recover the same, such a right does not exist and cannot be enforced where the consideration of the contract, thus made, arises entirely upon or is in any way affected by the compounding of a felony. When this element enters into the contract, it becomes tainted with a corrupt consideration and cannot be enforced. The correctness of this rule was recognized by the trial judge in his charge to the jury. He charged, among other things, as follows : “Was the note a legal contract or an illegal contract ? It was an illegal contract and void between the parties if it was given upon an agreement to suppress the evidence of a crime alleged to have been committed equally as if it were given upon an agreement to suppress the evidence or refrain from prosecuting a crime which had been in fact committed.” He also charged, “ If he impressed upon the plaintiff the idea that he would thus refrain and would conceal the crime if he would give the note, but that he would not refrain if he did not give the note, it was an illegal contract.” He further charged upon being requested that if the note was given simply to compound a felony, the plaintiff could not recover. So far the charge of the judge was entirely correct, and the case was properly presented to the jury in this respect.

The judge, however, was requested to charge as follows: “ That if the compounding of a felony entered into and formed a part of the consideration of the note, the plaintiff could not recover.” And also, “ that if the motive of the plaintiff in giving the note was in part for the purpose of compounding a felony, he would not be entitled to recover.”

Both of these requests were refused and exceptions taken to the rulings of the judge. We think there was error in each of the refusals. Within the rule already laid down, if the consideration of the note was in any way affected by the compounding of a felony, or it entered into the same, or such a motive actuated the plaintiff in any respect, then the contract was illegal, and should not be upheld. In such a case the contract was vicious and corrupt, and in violation of law as much as if compounding a felony had been the entire consideration. The element of illegality constituted a part of the contract, thus vitiating the whole, and it could not be rejected because duress, undue influence or threats were also blended with it.

It cannot be said that these requests were covered by the charge which had already been made, for while such charge comprehended the principle that the note might be avoided if given for compounding a felony, the refusals to charge left it to be inferred that this element might constitute a portion of the consideration without affecting its validity. This was clearly wrong, and the defendant was entitled to the charge in accordance with the requests made, and the judge erred in refusing the same.

We cannot agree with the doctrine that if the plaintiff was influenced by the duress of the defendant, and at the same time both parties intended the compounding of a felony, that they were not im,pari delicto. It is enough that the vice of compounding a felony was a part of the contract, operating upon the minds of both parties, and thus placing them upon an equality, to render the contract nugatory and of no effect.

For the errors of the judge in refusing to charge as requested, without considering the other questions raised, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Bugeb, Ch. J., not voting.

Judgment reversed.


author: Eakl, J.

text:
    Isabella B. Clute, Respondent, v. Jacob Knies et al., Survivors, etc., Appellant.
    In an action of ejeetment'plaintiff moved for the appointment of a receiver of the rents and profits of the land in question. Defendant thereupon consented that an order “ be entered requiring him to file security for the payment of rent of the premises, as the court may direct by order in the action.” In the order as entered and in the condition of the undertaking given in pursuance thereof, the word “ plaintiff ” was used by mistake instead of “defendant-.” The condition reading “that plaintiff will account for and pay over the rent,” etc. Held, that an action was maintainable to reform the bond and to enforce it as corrected.
    On the trial of the ejectment suit defendant succeeded; the judgment, however, was reversed and plaintiff finally had judgment in his favor for the possession of the premises and for a sum stated as the rental value thereof. Held, that the undertaking was not merged in or superseded by the first judgment, but that upon the rendition of the final judgment it by its terms became operative, as. the j udgment was a direction and order within the meaning of the undertaking.
    The order was also amended on motion without notice to the sureties. Held, that this was immaterial as it was not necessary to amend the order in order to maintain the action for the reformation o£ the undertaking.
    Also held, it was immaterial that the amended order required the defendant in the ej ectment suit to file a new undertaking, that no new undertaking having been filed the one given was not superseded.
    (Argued April 16,1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 29, 1884, which affirmed a judgment in favor of the plaintiff, entered upon a decision of the court, on trial at Special Term.
    The nature of the action and the material facts are stated in the opinion.

      Wm. G. Mcdrea for appellant.
    The liability of the sureties on the undertaking was terminated by the judgment dismissing the complaint. (Bouv. Law Diet., tit. Judgment; Freeman on Judgm., § 12; Weston v. Charleston, 2 Pet. 175; Code, §§ 1209, 1220, 1301, 1316; Disbro v. Disbro, 37 How. Pr. 147; Fellows v. Heermans, 13 Abb. [N. S.] 10; People v. Randall, 73 N. Y. 416; Gardner v. Gardner. 87 id. 14; People, ex rel. Roberts, v. Bowe, 8l id. 41; Woods v. Dwight, 7 Johns. Ch. 295.) A paper so referred to and described in a written instrument that it may be identified is thereby made a part of the instrument, the same as if incorporated therein. (Exporte

      Washington Park, 52 N. Y. 131; Nat. Bank'g Association v. Conklin, 15 Week. Dig. 243.) If the instrument in question is an undertaking given in pursuance of a statute, then the court had no power to amend the same. (Code, § 730; Langley v. Warner, 1 N. Y. 606.) To entitle a party to a judgment reforming a written contract, he must prove that it was the intent of both parties to make the contract, not as it appears, but as he claims it should have been, and that this intent was frustrated by fraud or mutual mistake. (Jackson v. Andrews, 59 N. Y. 244 ; Wevins v. Dundap, 33 id. 676, 680.) A receiver cannot be appointed in an action in ejectment before judgment. (Burdell v. Burdell, 54 How. Pr. 91; Guernseyv. Powers, 9 Hun, 78; Thompson v. Sherrard, 35 Barb. 539; Post v. Doremus, 60 N. Y. 371.)

      T. J. Glute for respondent.
    The decree directing the undertaking to be reformed, as prayed for, is right. (Bush v. Hicks, 60 N. Y. 298; Jackson v. Andrews, 59 id. 244; Pitcher v. Hennessy, 48 id. 415; Finnstom v. DeCamp, 2 N. J. Eq. 309; Stoddard v. Hart, 23 N. Y. 562.) The judgments of nonsuits of April 14, 1877, and of June 25, 1878, having been respectively reversed, it is the same as if neither had ever been rendered, and must be treated as a nullity, and the sureties remain liable. (Bennett v. Brown, 20 N. Y. 99 ; Robinson v. Plimpton, 25 id. 484; Lowery v. Tew, 25 Hun, 258; Jewett v. Creme, 13 Abb. 97.) The undertaking is an original obligation. Ho order of the court was necessary to give it validity. (4 Den. 551; 2 Duer, 170; 1 Brock. Marsh. 380; Johnson v. Ackerson, 40 How. 222; 3 Daly, 430 ; People v. White, 28 Hun, 298.)
   Eakl, J.

In 1874 the plaintiff commenced an action of ejectment against the defendant Emmerick and afterward made an application for the appointment of a receiver of the rents of the land claimed pending the action. Thereupon, to avoid the appointment of a receiver, Emmerick consented to the entry of the following order on the 2d day of May, 1874: “A motion having been made herein for an order appointing a receiver of the rents of the premises described in the complaint during the pendency of the action, the defendant objecting thereto, but consenting that an order be made and entered herein in lieu thereof, directing him to file security for the payment of said rent in case the court should so order and direct herein; now on reading and filing such consent, ordered that said defendant file security in the penalty of $3,000, with two sufficient sureties, conditioned that said plaintiff will account for and pay over the rent of said premises as the court may direct by order in the above entitled action.” In pursuance of'that order Emmerick, with the defendant Knies and one Fisher, executed an undertaking of which the following is a copy: An order having been made herein by consent, that the defendant file security with the clerk of this court in the penalty of $3,000, conditioned that plaintiff will account for and pay over, under the direction of the court, the rents of the premises described in the complaint; We, Adam Emmerick, of No. 337 West Fortieth street, in the city of New York; Anthony Fisher, of No. 437 West Forty-third street, in said city, and Jacob Knies, of No. 450 West Forty-fifth street, in said city, do undertake, pursuant to said order, in the sum of $3,000 that said plaintiff will account for and pay over the rent of said premises in case the court so directs, according to any order that may be made herein not exceeding the sum above mentioned.”

That action was thereafter tried and a judgment rendered in favor of Emmerick dismissing the complaint. From that judgment an appeal was taken by the plaintiff to the General Term and there the j udgment was reversed and a new trial was ordered. A second trial was had and the defendant was again successful, and the plaintiff again appealed to,the General Term and the judgment against her was reversed and a new trial ordered. Previous to the third trial, upon the motion of the plaintiff, an order was entered directing that the former order of May 2,1874, be amended mme pro tune by striking out the word “ plaintiff” where it appeared therein, and substituting the word defendant ” instead thereof, so that the order should read as follows: “ ISTow on reading and filing such consent, ordered, that said defendant file security in the penalty of $3,000, with sufficient surety, conditioned that said defendant will account for and pay over the rent of said premises as the court may direct by order in the above-entitled action.” Thereafter the third trial took place, and resulted in a judgment in favor of the plaintiff for the possession of the premises claimed, and for the sum of $2,562.72 as the rental value of the premises from October 21,1871, to Hay 6,1881, at the rate of $900 per year, after deducting certain payments and allowances made by the court to the defendant. In the meantime Fisher, one of the obligors in the undertaking dated Hay 2, 1874, had died. This action was commenced against the two survivors, the defendants Emmerick and Knies, to reform that undertaking by striking out the word plaintiff,” where it occurs therein, and inserting the word “defendant,” so that the undertaking would bind the obligors that the defendant Emmerick would account for and pay over the rent of the premises in question, in case the court should so direct, according to any order that might be made by the court, not exceeding the sum mentioned in the undertaking, on the ground that the word plaintiff ” was inserted in the bond by mutual mistake instead of the word defendant ; ” and judgment was also demanded upon the undertaking as thus corrected for the sum of $3,000, with interest. The court ordered judgment for the plaintiff, correcting the bond as prayed for, and for the sum due to the plaintiff for the rental value of the property. The defendants appealed from that judgment to the G-eneral Term, and from affirmance there to this court.

The first claim the appellants make is that the undertaking was merged in and superseded by the first judgment which was rendered dismissing the complaint. It is true that if that judgment had never been disturbed, it would have been final, and would have absolved the obligors in the undertaking from any liability. But it was subsequently reversed, and finally in the action a judgment was rendered in favor of the plaintiff, and then the undertaking, by its terms, became operative. This was not a statutory, but a common-law undertaking founded upon a sufficient consideration. There was a final judgment in the action which directed the defendant Emmerick to pay to the plaintiff certain rents, and that judgment was a direction and order of the court within the meaning of the undertaking. It is quite true that the dismissal of a complaint dissolves an injunction, and vacates and annuls an order of arrest, but there is no analogy between such cases and the case now before us. The undertaking bound Emmerick to account for and pay over the rent of the premises, as the court might direct by any order or judgment which might be obtained in the action; and when a final judgment was obtained directing such payment, the condition had arisen which rendered the obligors liable upon the undertaking.

No point was made upon the trial, or by any exception, that the amount awarded to the plaintiff in this action was too large. In the action against Emmerick it was found that the rental value of the property from October 21, 1871, to January 21, 1881, was $900 per year, and, after making certain deductions, a judgment was rendered against Emmerick for $2,561.73, and that was the amount of the recovery in this action. It is objected that the defendants are not liable for the rental value, but simply for the rents actually collected. No such point was taken at the trial, and it does not appear that Emmerick did not collect the full amount awarded against the defendants. In the absence of any proof, it may be assumed that he received rents equal to the full rental value. The undertaking was dated May 2, 1874, and the final judgment in the action was rendered seven years thereafter, and as the rental value appears to have been $900 per year, it cannot be said that the amount of the judgment is too large. It is a fair inference from the evidence that the balance of rents due from the defendant between the dates named was fully equal to the amount of the recovery.

It is also claimed that the court had no authority to amend the undertaking. It was simply a common-law instrument between the plaintiff and Emmerick an"d his two sureties. The evidence is ample and conclusive that by mutual mistake of the parties the word plaintiff ” was inserted where the word defendant ” should have been, and upon the proof there was ample power in the court to order the undertaking to be amended and enforced as amended, and thus make the instrument conform to what all the parties intended and expected.

It matters not that the order of May 2, 1874, was amended without notice to the sureties in the ’undertaking. It was wholly unnecessary to amend that order, and the amendment was harmless as this action could have been maintained without such amendment. Nor does it matter that in the amended order Emmerick was required to file a new undertaking in conformity therewith. The new undertaking was not filed, and the former was not, therefore, superseded.

We discover no error in the judgment, and it should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Rapallo, J.

text:
    John Reilley, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
    The Supreme Court has no power to reverse a judgment of the County-Court on the ground that the damages were excessive.

      It seems the only way such an error may be corrected is by motion in the County Court for a new trial.

      It seems, also, that the provision of the Code of Civil Procedure (§ 1343), which authorizes an appeal to the Supreme Court from an order of a County Court affecting a substantial right, does not give to the former court the power to review an order of the County Court denying the motion for a new trial.
    Conceding this to he otherwise, it will not avail, on appeal from the judgment, when no order was entered in the County Court denying the motion.
    (Argued April 16, 1886;
    decided June 1, 1886.)

      Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 28, 1884, which reversed a judgment of the County Court of Albany county and granted a new trial.
    The nature of the action and the material facts are stated in the opinion.

      Amasa J. Pa/rker for appellant.
    The General Term of the Supreme Court has no power to review a question as to excessive damages on an appeal from a County Court. (Thurber v. Townsend, 22 N. Y. 517, 519; Ex parte Bassett, 2 Cow. 458; Bowen v. Widmer, 12 Week. Dig. 525; Wavel v. Wiles, 24 N. Y. 635; Meyers v. Riley, 21 Week. Dig. 280; Smith v. Platt, 96 N. Y. 636; Stebbins v. Cowles, 30 Hun, 523; Lawrence v. Ely, 38 N. Y. 42, 44; Selden v. D. & H. R. R. Co., 29 id. 634; Young v. Davis, 30 id. 134; Sherman v. Felt, 2 Comst. 186; Vandewater v. Kelsey, 1 id. 533; Marvin v. Seymour, id. 535; Fort v. Bard, id. 43; Rice v. Floyd, 4 How. Pr. 27; Dunham v. Watkins, 2 Kern. 556, 560.) The Supreme Court, having no power to reverse the judgment of the County Court for a supposed error of the jury, it is the duty of this court to reverse the judgment of the Supreme Court. (Baker v. Remington, 45 N. Y. 323.) An appeal cannot be taken till after the entry of the order or judgment appealed from. (1 Bliss’ Code, 990, note 6; In re N. Y. C. R. R. Co., 60 N. Y. 112; Bradley v. Yan Zandt, 3 Code Rep. 217.)

      Edwin Young for respondent.
    The appeal from the County Court order, refusing a new trial on the ground of excessive damages, was properly reviewable by the General Term, as the court of last resort. (Code of Civ. Pro., § 1342; In re Duff, 10 Abb. Pr. [N. S.] 421, 424; People v. N. Y. C. R. R. Co., 29 N. Y. 421, 423; Suydam v. G. S. & P. R. R. Co., 17 Abb. Pr. 304.) It is a matter for the discretion of the General Term whether or not to set aside a verdict as excessive. The exercise of this discretion is not-reviewable here. . (Peck v. N. Y. C. &

      H. R. R. R. Co., 10 N. Y. 587 ; Campbell v. Page, 50 id. 658; Hayes v. Ball, 72 id. 419,424; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 591; Oldfield v. N. Y. C. & H. R. R. R. Co., 14 id. 310; Wrigkt v. Hunter, 49 id. 409-10; Sands v. Crook, id. 564; Dickson v. B. & Seventh Ave. R. Co., 47 id. 507; Downing v. Kelly, 48 id. 433 ; Harris v. Burdett, 73 id. 136 ; Bronk v. N. Y. & N. H. R. R. Co., 95 id. 656 ; Whitson v. David, 81 id. 645 ; Snebley v. Connor, 78 id. 218; Cushman v. Brundrett, 50 id. 296 ; Vermilyea v. Palmer, 52 id. 471; Macy v. Wheeler, 30 id. 231.) The verdict was excessive upon the clear weight of evidence, and the General Term were justified in granting a now trial upon this ground. (Hamilton v. Third Ave. R. R. Co., 48 How. Pr. 50; 53 N. Y. 25 ; Clapp v. H. R. R. Co., 19 Barb. 461; Hibbard v. N. Y. & E. R. R. Co., 15 N. Y. 457; Townsend v. N. Y. C. & H. R. R. R. Co., 56 id. 295 ; Hasbrouck v.. D. & H. C. Co., 32 Hun, 642: Tarbell v. R. R. Co., 34 Cal. 617.)
   Rapallo, J.

This action was brought in the County Court of Albany county to recover damages for ejecting the plaintiff from the defendant’s cars. The plaintiff had a verdict for $1,000 damages. At' the close of the trial the defendant’s counsel moved the county judge, on the minutes, for a new trial, on the grounds that the damages were excessive and that the verdict was against the. weight of the evidence. The motion was denied and an exception taken. Ho order denying the motion was entered. Judgment was entered in the County Court upon the verdict, and an appeal from the judgment and from the decision of the county judge, denying a new trial, was thereupon taken to the General Term of the Supreme Court, where the judgment was reversed and a new trial ordered, on payment by the defendant of the costs of the trial, on the sole ground that the damages were excessive. From that judgment of the Supreme Court plaintiff now appeals to this court, claiming that the Supreme Court had no power to reverse the judgment of the County Court on the ground that the damages were excessive.

It lias been several times decided by this court that the General Term of the Supreme Court had no power under the Code of Procedure to reverse the judgment of an inferior court on the ground of excessive damages, but could only review questions of law decided by those courts. (Thurber v. Townsend, 22 N. Y. 517.) It was said in that case that it was only errors of the court and not of the jury which the Supreme Court had the power to correct, and that the only way in which such errors could be corrected was by motion in the inferior court for a new trial, and that the decision of that court upon the subject would be final, the setting aside of a verdict on account of excessive damages being, discretionary. To the same effect is the case of Baker v. Remington (45 N. Y. 323), where an appeal was taken to the Supreme Court from an order of the City Court of Brooklyn, granting a new trial on the ground of newly-discovered evidence (See, also, Wavel v. Wiles, 24 N. Y. 635 ; Smith v. Platt, 96 id. 635, 636); and the general rule is well settled that the decisions of one court resting in discretion are not reviewable in another unless such review is specially authorized by law.

The respondent contends, however, that the rules laid down in the cases cited are changed by section 1342 of the Code of Civil Procedure, which provides that “ an appeal may be taken to the Supreme Court from an order affecting a substantial right, made by the court or a judge, in an action brought in a court specified in the last section but one ” (which includes a County Court).

Even if this provision could be held to authorize a review by the Supreme Court of an order of a County Court, denying a motion for a new trial on the ground of the excessiveness of the damages, it would not avail the respondent on this appeal, because no order was entered in the County Court denying the motion for a new trial (In re N. Y. Cent. R. R. Co., 60 N. Y. 112; Bradley v. Van Zandt, 3 Code Rep. 217; Code of Civ. Pro., § 1343); and the exception taken to the decision, denying the motion on the minutes, was not an exception to a ruling upon the trial, and presented no point for review. The judgment of the General Term now appealed from purports to reverse the judgment of the County Court and grant a new trial.

But we do not think that, even if an order had been entered in the County Court and appealed from, the provision of the Code of Civil Procedure changed the former rule, or was intended to give jurisdiction to the Supreme Court to review the exercise of the discretion of an inferior tribunal.

The order of the General Term should be reversed, with costs.

All concur.

Order reversed.


author: Roger, Ch. J.

text:
    William Moores, Respondent, v. John Townshend, Appellant.
    In an equitable action, to compel the cancellation of a deed given on a tax sale as a cloud on title, the averment in the complaint of title in the plaintiff was denied by the answer. The only finding or evidence on the subject was a deed purporting to be executed by one describing himself therein as a referee duly appointed by a decree in a partition suit. There was no proof or finding that any of the parties to that action or their grantors ever had title to or possession of the premises, and at the time of and for a long period prior to the execution of such deed defendant was in possession claiming title under the tax deed. Held, that a judg ment in favor of plaintiff was unauthorized.
    It is essential to the support of a judgment in an action tried by the court that the findings of fact establish a legal right on the part of the successful party to the relief granted, and when they do not, and there is nothing in the evidence to show such right, an exception to the legal conclusion of the court directing judgment presents the question on appeal.
    Where the only ground for equitable relief stated in the "complaint in such an action Was the want of an adequate-remedy at law, but neither the findings nor the evidence showed that plaintiff could not obtain all the relief he was entitled by an action of ejectment, held a judgment in plaintiff’s favor was not sustainable.
    A party out of possession can only sustain an action quia timet, to remove a cloud on title, when it is specially authorized by statute, or where special circumstances exist, affording ground for equitable jurisdiction, aside from the mere allegation of a legal title in plaintiff. The action is not maintainable merely to establish a legal title or to recover possession, nor is it maintainable to set aside a conveyance, the invalidity of which appears upon its face, or in proof which the claimant will be required to produce in order to establish title under it.

      Boekes v. Lansing (74 N. T. 437), Lattin v. MeGarty (41 id. 107), Remington Paper Go. v. O’Dougherty (81 id. 474), distinguished.
    (Argued April 19, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made the first Monday of October, 1884, which affirmed a judgment in favor of plaintiff entered on a decision of the court on trial at Special Term. -
    The nature of the action and the material facts are stated in the opinion.

      John Townshend for appellant.
    Plaintiff having tried his case as “ an equity cause,” and nothing else, is estopped from claiming that it was any thing else. (Powell v. Waldron, 89 N. Y. 328, 333; Heywood v. Buffalo, 14 id. 534, 540; Rome Bank v. Eames, 1 Keyes, 588, 592; Main v. Fairchild, 2 id. 106, 112; Thornton v. St. Paul, 6 Weekly Dig. 309.) The defendant, as he had a right to do, rested on the ground that an action to remove a cloud on the title could not be maintained by one out of possession. (Powell v. Waldron, 89 N. Y. 333.) To entitle one to come into a court of equity for relief, he must show some grounds for it, such as fraud, mistake, or want of adequate remedy at law. ( Venice v. Woodruff, 62 N. Y. 467; 1 Story’s Eq. Jur., § 33; Ocean Bk. v. Olcott, 46 N. Y. 19 ; Allerton v. Belden, 49 id; 378.) Unless there be fraud or some other ground for equitable relief, one out of possession cannot bring an action to remove a cloud on his title. (Phillips v. Gorham, 17 N. Y. 270; Boekes v. Lansing, 13 Hun, 41; S. C., Weekly Dig. 16; affirmed, Ct. App., 7 id. 321 ; 74 N. Y. 437, 442; Ward v. Dewey, 16 id. 521; 1 Wait’s Actions and Defenses, 666.) As a general rule, a party out of possession has no right to resort to equity to remove a cloud upon title. (Apperson v. Ford, 23 Ark. 746;
      Harrington v. Williams, 31 Tex. 448; Polk v. Pendleton, 31 Md. 118; Haythorne v. Margarem, 7 N. J. Eq. [3 Halst,] 324; Lake Bigler Rd. Co. v. Bedford, 3 Nev. 399; Burton v. Gleason, 56 Ill. 25 ; Clark v. Covenant Ins. Co., 52 Mo. 272. Barron v. Robins, 22 Mich. 42; Thompson v. Lynch, 29 Cal. 189; Branch v. Mitchell, 24 Ark. 431; Almony v. Hicks, 3 Head [Tenn.], 39; Low v. Staples, 2 Nev. 209; O’Brien v. Creig, 10 Karts. 202; Taylor v. Roundtree, 28 Wis. 391.) Ho person but one in possession of land can sustain a bill to remove a cloud upon title by cancellation of an opposing deed or claim. (Apperson v. Ford, 23 Ark. 754.) Equity will entertain jurisdiction to remove a cloud where complainant is in full possession, or from other cause without adequate remedy. (Story’s Eq. Jur. [11th ed.], note a to §§ 700, 711; Sullivan v. Finnegan, 101 Mass. 447; Bunce v. Gallagher, 5 Blatchf. C. C. 48; Clousten v. Shearer, 99 Mass. 209; Woods v. Monroe, 17 Mich. 238.) The plaintiff has an adequate remedy by an action of ejectment, and, in the absence of some ground for equitable interference, to permit one out of possession to maintain this action would be allowing him to try the defendant’s title to land without a jury and deprive defendant of his right to a jury trial. (Hipp v. Babin, 19 How. [U. S.] 278 ; Bailly v. Briggs, 56 N. Y. 413.) The plaintiff was bound to show either a regular paper title or actual possession. The barely giving in evidence of a deed to him of the premises fell short of proving a title. (Gardner v. Heart, 1 N. Y. 529.) Whether the action was a legal or equitable one, or both, the court undertook to try the whole case, and, having done so, should have decided the whole. Having failed to decide the whole, the judgment should be reversed. (O’Brien v. Bowers, 4 Bosw. 657-663.) It was a prerequisite to plaintiff’s right to relief that he should, at least, establish the fact of his ownership of the premises. (Collins v. Clark, 54 Barb. 184.) Defendant, being in possession, this created a presumption of title in him. (Smith v. Lorillard, 19 Johns. 356 ; Ford v. Belmont, 69 N. Y. 567-571.) ¡Recital in a deed is not evidence as against a stranger to the deed. (Brown v.
      Goodwin, 75 N. Y. 412.) Plaintiff cannot amend by making his action a legal action. (Bockes v. Lansing, 6 Weekly Dig. 16; 7 id. 321.) The complaint should have been dismissed. (Thornton v. St. Paul, 6 Weekly Dig. 309.) The possession of defendants being alleged in the complaint, was not a point in issue, and no finding to that effect was necessary or proper. (Bridge v. Payson, 5 Sandf. 217; Barto v. Himrod, 8 N. Y. 483.)

      Robert L. Wensley for respondent.
    The general exception “to each and every other finding of fact and conclusion of law” presents nothing for review. (Ward v. Craig, 87 N. Y. 557; Newell v. Doty, 33 id. 83, 93; Goodrich v. Thompson, 44 id. 324, 335 ; Laurence v. Fowler, 20 How. Pr. 407, 414.) The recitals of the deed are sufficient as against defendant. (Acer v. Westcott, 46 N. Y. 389.) A judicial sale will be presumed to have been regular. (Am. Ins. Co. v. Fisk, 1 Paige, 90.) It will be presumed that the officer making á judicial sale proceeded in conformity with the decree under which he acted. (Leland v. Cameron, 31 N. Y. 115.) The question whether the findings of fact are supported by the evidence is not before us, as the case does not contain all the evidence. (Parsons v. Coburn, 2 N. Y. Sup. Ct. 329.) Where the defect is not specified, and the motion (to dismiss complaint) is denied, an exception to the decision is not available if any view of the evidence would sustain a cause of action, and not then unless it appears that the defect could not be supplied. ( Webb v. Odell, 49 N. Y. 583 ; O' Neil v. James, 43 id. 93; Cook v. N. Y. C. R. R. Co., 1 Abb. Ct. App. 433; Jencks v. Smith, 1 N. Y. 92.) The plaintiff, although out of possession, can maintain an action to remove a cloud upon the title against appellant who is in possession. (Lattin v. McCarthy, 41 N. Y. 107; Remington Paper Co. v. O' Dougherty, 81 id. 474, 481.) The sale for a sum which includes illegal interest is void. (In re Willis, 30 Hun, 13; In re Gantz, 85 N. Y. 536, 540.) Appellant having requested no finding as to ownership, cannot overturn the judgment for the absence of such finding. (Bur-

      nap Nat. Bk. v. Nat. Bk. of Potsdam, 96 N. Y. 125.) Plaintiff is entitled to relief in equity. (Laws of 1871, chap. 381, p. 744 ; Ward v. Dewey, 16 N. Y. 522; Crooke v. Andrews, 40 id. 549; Seott v. Onderdonk, 14 id. 15, 16 ; Fonda v. Sage, 48 id. 179.)
   Roger, Ch. J.

The relief asked for in this action, and granted, by the judgment appealed from, required the defendant to deliver up for cancellation, as a cloud upon the title, the conveyance under which he occupied the premises in dispute, and that the clerk of arrears cancel the conveyance, and also all records and entries, relating to the same, in his office. This relief was purely equitable in character and needed for its support the proof of some facts giving the court jurisdiction of such a cause of action. (Heywood v. Buffalo, 14 N. Y. 534, 540; Bockes v. Lansing, 74 id. 437.)

We have been unable to discover, either in the evidence or the findings, any proof of" such facts, or of facts sufficient to "entitle the plaintiff to either legal, or equitable relief. The complaint alleged that the plaintiff was the owner of the premises in dispute, and, although this allegation was denied by the answer, neither the evidence nor the findings in this respect supported the complaint. The claim of the plaintiff for relief rested wholly upon the truth of this allegation, and, being totally unproved, there is no theory upon which he could be entitled to judgment upon the findings, for any relief.

The only title in the plaintiff as appears by the findings of fact, is that derivable from a deed purporting to be executed to him, by one John A. Foley, describing himself as a referee duly appointed in a decree in partition, entered at a Special Term of the Supreme Court January 31, 1882, in an action between one Freeman, plaintiff, and one DeGrroat and others, defendants, authorizing the sale of the premises in question by such referee. The parties to the partition action other than those named are not disclosed, and there is no proof or finding that any of them or their grantors ever had title to, or possession of the premises in dispute or any part thereof. On the contrary, the allegations of the complaint as well as the proof showed that the defendant Townshend was, at the time of such decree and for a long period of time prior thereto had been, in possession of the premises, claiming title under a conveyance, dated September 19, 1873, to him, from the comptroller of the city of New York, executed in pursuance of a sale for the non-payment of an assessment, duly imposed in accordance with the statute, by the municipal officers of New York. If we look at the proof it does not aid the findings, for it was wholly confined to the production and proof of the referee’s deed and certain alleged terms of sale, which did not disclose any' fact bearing upon the ownership of the premises.

This proof was entirely inadequate to establish any title in the plaintiff, as against a stranger to the action in which it was given. The evidence was undeniably competent and was unobjectionable, except as to the order of proof. The question arising thereon was solely as to the legal sufficiency of the evidence, and was fairly presented by the defendant’s exception to the finding of law directing judgment for the plaintiff.

It is essential to the support of a judgment that the findings of fact, should establish a legal right on the part of the successful party to the relief granted, and when they do not and there is nothing in the evidence to show such right, an exception to the legal conclusion of the-court directing judgment, raises the question, whether irpon all of the facts found the party succeeding is entitled to the judgment directed. (Hemingway v. Poucher, 98 N. Y. 281, 287.) The question, therefore, seems to be properly raised in the case and requires the reversal of the judgment appealed from. -

It is further urged by the appellant that the facts disclosed on the trial did not show any right on the part of the respondent to equitable relief. We think this point also is well taken. The only ground alleged for the relief demanded, was the want of an adequate remedy at law, and yet the facts stated showed presumptively the existence of such a remedy, and the falsity of the averment. No reason is averred in the complaint why the plaintiff could not obtain all of the relief to which he was entitled by an action of ejectment; and an examination of the findings and evidence shows that none in fact existed. (Phillips v. Gorham, 17 N. Y. 270.) The complaint was manifestly insufficient in this respect. (Bockes v. Lansing, 74 N. Y. 437, 443; Ocean Nat. Bk. v. Olcott, 46 id. 12, 19 ; Allerton v. Belden, 49 id. 373, 378; Venice v. Woodruff, 62 id. 462, 467.)

We have been unable to find any case where a party out of possession, has been allowed to sustain an action guia timet to remove a cloud upon title, except when it was specially authorized by statute, or when special circumstances existed affording grounds for equitable jurisdiction, aside from the mere allegation of legal title. Indeed the right to resort to a court of equity in such cases was originally based upon the assumption that the legal title to the property had been established by an action at law, and jurisdiction was entertained solely for the purpose of protecting the party in the enjoyment of rights in possession thus legally established, and while the jurisdiction has in the course of time been somewhat extended, it has never been stretched to cover cases brought merely to establish a legal title, or recover possession alone. (Spence’s Eq. Jur. 658; Story’s Eq. Jur. [11th ed.], § 711; Adams on Equity, 199; Pomeroy’s Eq. Jur., §§ 1395-1399.) In all the cases cited to the effect that equity will entertain jurisdiction to set aside assessments and conveyances as a cloud upon title, the party bringing the action was in possession of the property, or other circumstances gave equitable jurisdiction. (Scott v. Onderdonk, 14 N. Y. 9; Hatch v. City of Buffalo, 38 id. 276; Fonda v. Sage, 48 id. 173; Marsh v. City of Brooklyn, 59 id. 280, 283.) When the invalidity of the disputed title appears upon the face of the conveyance, or in any proof which the claimant is required to produce in order to maintain an. action to establish it, no suit whatever can be maintained in equity to set it aside, because it is said that a title obviously void, does not constitute even a cloud upon the title of the true owner. The question in this case is not as to the propriety or impropriety of uniting legal and equitable causes of action in one complaint, but it is whether sufficient facts have been alleged and proved to sustain such respective causes of action. It was said by Judge Kapallo in Bockes v. Lansing (supra), that “ to sustain such an action the facts must be alleged which would be necessary to entitle him to the relief, had he sought it in separate actions.” The cases of Lattin v. McCarty (41 N. Y. 107), and Remington Paper Co. v. O' Dougherty (81 id. 474), have been cited to support the claim that actions to remove a cloud upon title, and recover possession may be joined, and that courts of equity will entertain jurisdiction to give relief in such actions. We do not think that those cases sustain such a doctrine. In both of those cases special circumstances existed outside of the legal title, and right to possession, which conferred the jurisdiction exercised. As was said by Judge Kapallo, in Boches v. Lansing, with reference to Lattin v. McCarty, “ the instrument sought to be set aside as a cloud was a deed which apparently, and without any extrinsic proof, established a title paramount to the plaintiffs, and the complaint showed that the defendant had fraudulently obtained possession of the premises and claimed to own them under the deed.” The action there was sustained solely upon the ground that the defendants held the legal title by virtue of a deed fraudulently obtained, and the possession by a fraudulent attornment by the tenant of the owner, and, therefore, ejectment could not have been maintained. These facts were held to give the equitable jurisdiction there exercised. In Remington Paper Co. v. O' Dougherty (81 N. Y. 481), the action was brought by a purchaser under sale upon execution before his right to a deed had matured, among other things to set aside a previous conveyance apparently paramount to the plaintiff’s right upon the ground that it was forged, and also certain judgments and mortgages which it was alleged had been paid and were kept alive for fraudulent purposes.

It was held that the facts alleged constituted a case for equitable jurisdiction, and that the court having-jurisdiction for some purposes could exercise it to give the relief to which the party was entitled.

Ho facts are alleged in this case giving the court equitable jurisdiction, and we are of the opinion that the judgment of the court below should be reversed and a new trial ordered, with costs to abide event.

All concur.

Judgment reversed.


text:
    H. Hill Fowler, Appellant, v. Charles T. Callan et al., Respondents.
    An attorney may agree with, his client upon his compensation, and it may be made contingent upon his success and. payable out of the proceeds of the litigation.
    Proceedings having been instituted before a surrogate which threatened the interests of defendant C., a devisee of certain real estate, and required him to appear and defend, he called upon plaintiff and retained „ him as his attorney. They entered into an agreement in pursuance of which C. executed to plaintiff a deed of an undivided half of the real estate, the latter agreeing to accept the same as his compensation, to conduct the defense to its close, to pay all the costs and expenses of the litigation, and to indemnify C. against the same. In an action of ejectment to recover the one-half so conveyed, held, that the contract was not in violation of the statutory prohibitions (Code of Civ. Pro., §§ 73, 74), but was an agreement purely for compensation and therefore valid.

      Fowler v. Callan (13 Daly, 363), reversed.
    (Argued April 19, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made at the January term, 1884, which affirmed judgments in favor of defendants, entered upon an order dismissing the complaint on trial. (Reported below, 12 Daly, 263.)
    This was an action of ejectment to recover an undivided half of certain premises to which plaintiff claimed title under a deed from defendant Callan. The plaintiff is an attorney at law, and the deed was delivered to him in pursuance of a contract, the substance of which is stated in the opinion.

      Scott Lord for appellant.
    The law as to champerty and maintenance is not now in force in this State. (Sedgwick v. Stanton, 14 N. Y. 289 ; Dargin, v. Ireland, id. 322; Voorhees v. Dorr, 51 Barb. 580.) If it be held that champerty and maintenance are not entirely done away with, but still exist for some purposes, the agreement under which the transfer is made is nevertheless legal. (Bouv. Law Diet. “Champerty”; 1 Russell on Crimes, 176; 2 Pars, on Cont., 266; Benedict v. Stewart, 23 Barb. 421.) The agreement is not in contravention of the statute in force at the time it was made. (3 R. S. [6th ed.] 449, §§ 59, 60; Code, §§ 73, 74; Coughlin v. N. Y. C. & R. R. R. R. Co., 71 N. Y. 443, 447, 453; Brotherson v. Consalus, 26 How. 213 ; 3 R. S. [6th ed.] 449, §§ 59, 60.) To set aside the deed on the ground that what was paid the appellant was excessive, Callan should bring a distinct action and offer to pay what the services were worth. (Thurston v. Purcival, 1 Pick. 415.) The aim of the statute as to champerty was to prevent attorneys from purchasing claims for the express purpose of instituting suits thereon, and thus oppressing debtors and making costs. (2 R. S. 288, § 71.)

      J. Adolphus Kamping for respondent Callan.
    In transactions between an attorney and his client, every presumption and every doubt is against the claims of the attorney. (Kitching v. Van Brunt, 38 N. Y. 342; Burling v. Ring, 2 N. Y. Sup. Ct. [T. & C.] 545 ; Whitehead v. Kennedy, 69 N. Y. 462 ; Story’s Eq. Jur., §§ 308-324; Brotherton v. Consalus, 26 How. 219; R. S., part III, chap. 3, art. 3, § 81.) The agreement was champertous, therefore illegal, and the deed based thereon was void. (2 R. S. 691, § 56; Jackson v. Ketchum, 8 Johns. 482; R. S. 813; revisers’ notes; Hoyt v. Thompson, 5 N. Y. 547; Ogden v. Des Arts, 4 Duer, 283.) The essential ingredient of the crime is the agreement that the party prosecuting a suit for another shall do it at his own expense. (Benedict v. Stuart, 23 Barb. 421; 4 Bl. Com. 135; 2 Pars, on Cont. [5th ed.] 766 ; Lathrop v. Amherst Bk., 9 Metc. 489; Sarterlee v. Fraser, 2 Sandf. 141; Brotherton v. Consalus, 26 How. 218.) Plaintiff’s agreement was, within the meaning of the statute, an agreement to advance money to a person in consideration of having placed in plaintiff’s hands the demand in suit. (Coughlin v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 452.)

      Quentin Mg Adam for respondents Kelly & Griffin.
    The deed under which the plaintiff -claimed was based upon a consideration forbidden by law and is void. (Sedgwick v. Stanton, 14 N. Y. 289, 294.) Champerty, except as it is or may be embodied in existing statutes, has no existence in this State. (Sedgwick v. Stanton, 14 N. Y. 289 ; Durgin v. Ireland, id. 322; Voorhees v. Dorr, 51 Barb. 580.) The contract now under consideration in stipulating not only for the services of the plaintiff in the litigation, but to bear the expenses thereof, “ and to save his client (the litigant) from the payment of any costs and expenses in relation to the same,” is unlawful. (Brotherton v. Gonsalus, 26 How. 213, 217, 218; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443, 452.)
   Finch, J.

It does not affect the validity of the contract between the attorney and his client, that measured by the old rules relating- to champerty and maintenance, it would have fallen under their condemnation; for neither doctrine now prevails except so far as preserved by our statutes. (Sedgwick v. Stanton, 14 N. Y. 289.) The attorney may agree upon his compensation; and it may be contingent upon his success, and payable out of the proceeds of the litigation. Such contracts are of common occurrence, and while their propriety has been vehemently debated, they are not illegal, and when fairly made are steadily enforced. In substance that was the contract here made, and there would be no question about it had it not contained a provision by the terms of which the attorney not only agreed to rely upon success for his compensation, - but also to assume all costs and expenses of the litigation and indemnify his client against them. It is this feature of the contract which raises the question necessary to be determined.

The facts of the case are not very fully developed, but appear to be that the defendant as devisee under a will was entitled to certain real estate; his right dependent upon the validity of the will, and in some manner threatened by proceedings before'the surrogate which put his interest in peril, and-made a defense essential to its protection. In this emergency he sought the aid and professional service of the plaintiff and retained him as attorney. The latter neither sought the retainer, nor did any thing to induce it. So far as appears, it was not occasioned by any offer or solicitation of his, but originated in the free and unbribed choice of the client. The evidence does not show whether the latter had gained possession of the land devised or was out of possession, but he gave to the attorney a deed of the one undivided half part of the property, taking back his covenant to conduct the defense to its close, paying all costs and expenses of the litigation, and indemnifying the devisee against all such liability. The agreement appears to have been purely one for compensation. If the client had given to the attorney money instead of land, the contract would have differed in no respect except the contingent character of the compensation. The arrangement contemplated success in the litigation, in which event the land would pay the costs and expenses and the attorney’s reward, and both would be discharged out of the property of the client placed in the hands of the attorney for that precise purpose. The contract in no respect induced the litigation. That was already begun and existed independently of the agreement, and originated in other causes. It did not tend to prolong the litigation. It made it to the interest of the attorney to close it as briefly and promptly as possible, and at as little cost and expense as prudence would permit. The plaintiff, therefore, stirred up no strife, induced no litigation, but merely agreed to take for his compensation so much of the value of the land conveyed to him as might remain put of that value after the costs and expenses had been paid. We do not think the stat- ° • ute condemns such an agreement. (3 R. S. [6th ed,] 449, §§ 59, 60; Code, 73, 74.) The Code revision changed somewhat the language of the prohibition, but, nevertheless, must be deemed a substantial re-enactment of the earlier sectians. (Browning v. Marvin, 100 N.Y. 141, 148.) They forbid, first, the purchase of obligations named by an attorney for the purpose and with the intent of bringing a suit thereon; and, second, any loan or advance, or agreement to loan or advance, “as an inducement to the placing, or in consideration of having placed in the hands of such attorney,” any demand for collection. The statute presupposes the existence of some right of action, valueless unless prosecuted to judgment, which the owner might or might not prosecute on his own behalf, but which he is induced to place in the hands of a particular attorney by reason of his agreement to loan or advance money to the client. It contemplates a case in which the action might never have been brought but for the inducement of a loan or advance offered by the attorney, and in which the latter by officious interference procures the suit to be brought and obtains a retainer in it. The statute speaks of a “demand,” which by enforcement will end in a “ collection ”; phrases which have no aptness to the situation of one simply defending a good title to land against the efforts of others seeking to destroy the devise under which he claims. The plaintiff made no “ loan or advance ” in any proper sense of those words. They imply a liability on the part of the client to repay what was thus lent or advanced. The attorney loaned nothing, and he advanced nothing to the client which the latter was bound to reimburse. Simply he was paid in advance an agreed price, taken in land instead of money, and out of which he was first to pay costs and expenses. The facts before us are not within the terms pf the statutes as it respects a “ demand ” which is the subject of collection,” but our conclusion rests more strongly upon the conviction that the ■ agreement made was one for compensation merely and had in it no vicious element of inducing litigation or holding out bribes for a retainer.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.