author: Campbell, J.

text:
    Davies and Rockwell, Assignees of Wilder, v. Cram and others.
    Under the code of procedure, an insolvent debtor who has assigned his property to assignees, for the payment of his debts, is a competent witness in an action brought or defended by his assignees in relation to his estate.
    Such a suit is not prosecuted or defended for his immediate benefit, within the meaning of the code.
    As a general rule, a creditor of the insolvent debtor is also a competent witness in such a suit; though it is possible there may be exceptions; as where there is but a single creditor, who would be entitled to the whole proceeds of the recovery, and where the subject-matter in controversy involves the whole of the assigned estate.
    The objection goes td the credibility of the witnesses, rather than to their competency.
    Ten persons being the owners of a ship, one of whom was the master, chartered her to W., one of the owners, for a load of cotton from Mobile to Havre, with a stipulation that eight hundred bales should be bought by W. for account of all ■the owners, at a limited price, and to go freight free. , The eight hundred bales were bought and put on board by W., and at Havre sold at a loss. The loss arose from the purchase being at a higher price than that stipulated. The master knew of the price when it was put- on board at Mobile, yet signed a bill of lading expressing in effect that it was for the owners’ account. On a bill by W. to compel the owners to contribute to the loss ; held, that, no one except the master was liable.
    The account of the sales of the cotton was made up by the consignees at Havre, on the 26th of Aug., 1641. It did not appear when it reached W. in New York, but it had not been received by him in the latter part of Sept., 1841. Held, that the statute of limitations would not commence running against W. until after the account was received by him; and that a suit having been commenced in his name on the first day of October, 1847, the demand was not barred by the statute.
    (Before Duer, Mason, and Campbell, J. J.)
    Oct. 10, 11, 12;
    Dec. 28, 1850.
    This was a bill in equity, filed in the supreme court in 1847, by tbe assignees of Sampson V. S. Wilder, against the defendants, nine in number, to recover the amount of a loss which had occurred upon a shipment of 800 bales of cotton from Mobile to Havre. In February, 1841, Wilder and the defendants being the owners of the ship Hottinguer, Wilder chartered her to proceed from New York to Mobile, and there receive a cargo of cotton, and sail thence to Havre; the ship to be consigned to the friends of Wilder at the latter port. Eight hundred bales of the cotton were to be on owners’ account, and freight free. The bill alleged that the defendant, Eleazer Crabtree, was the managing owner and captain of the ship, and that at the time of making the charter-party for the voyage, it was agreed by and between him, (acting with the authority and consent of the other owners,) and Wilder, that Wilder should purchase the whole of the cargo for the ship, and that after the same should be sold by the consignees at Havre, Wilder should settle with the owners of the ship for the 800 bales which were purchased on their account, and if there were any loss thereon, that the owners should be accountable to him, and pay him the amount of such loss; and in case any profit should arise from the sale of the 800 bales, that the owners should be entitled to have and receive the same from Wilder, and the profit and loss were to be borne by and divided amongst the several owners of the ship, in proportion and according to their respective interests in the ship. The bill further alleged, that in pur- . suance of such charter-party and agreement, the ship proceeded to Mobile, and that in March and April, Wilder purchased, or caused to be purchased, and laden on board at that place, a full cargo of square cotton, consisting of 2801 bales, 800 bales Of which were on account of the owners of the vessel; the whole • cost of such cargo being $142,736.38. That the ship sailed from Mobile on the 6th or 7th of May, and arrived at Havre on the 20th of June, 1841. That Hottinguer & Co., the consignees, sold the cargo, and that on the sale of the 800 bales, so shipped on account of the owners, there was sustained a loss of $6425.50, which loss was borne and paid by Wilder. The bill admitted that Wilder, as owner of one-eighth of the vessel, was liable to contribute one-eighth part of such loss; and claimed that the other owners were bound to contribute and pay the other seven-eighths of such loss, with interest.
    Eight of the defendants in their answer, which was put in under oath, admitted the making of an agreement between them and Wilder that they were to be interested in 800 bales of the cargo; but they alleged that they were to be so interested only on condition that the cotton should be purchased at or below a limited price; and that had the cotton been purchased by Wilder at that price, no loss would have occurred; but that he paid a higher price for it, which caused the loss. The statute of limitations was also set up in the answer. .The defendant, Rockwell, suffered the bill to be taken as confessed. There was nothing in the testimony which disproved these allegations of the defendants. The cause was heard on the pleadings and proofs.

      W. Kent, for the complainants.

      II. A. Oram, for the defendants.
   By the Court.

Campbell, J.

The plaintiffs filed a bill to compel payment by the defendants of the loss upon a shipment. of 800 bales of cotton to Havre in 1841. In February of that year, Wilder and the defendants, being the owners of the ship Hottinguer, Wilder chartered the vessel to proceed from New. York to Mobile, and there load with cotton and proceed thence to Havre. An agreement was entered into between Wilder and Eleazer Crabtree, master and one of the defendants, that of this cargo 800 bales should be on owners’ account. The defendants admit an agreement to the effect that they were to be interested in 800 bales, but allege in their answ-er that they were to be so interested only on condition that the cotton should be purchased at or under a limited price, and at which, price no loss would have occurred. They also set up the statute of limitations.

The principal witness on the part of the plaintiffs was Wilder himself, who, subsequently to the agreement, failed in business, and made an assignment of all his property to the plaintiffs, who prosecute this suit for the benefit of his creditors. On the hearing, it was urged by the defendants’ counsel that Wilder was not a competent witness.

The language of the code is as follows :

§ 898. “ No person offered as a witness shall be excluded by reason of his interest in the event of the action.

§ 899. “ The last section shall not apply to a .party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action assigned for the purpose of making him a witness.”

There can be no doubt that Mr. Wilder is interested in the event of this action; but can it be said that it is prosecuted for his immediate benefit ? The persons first and immediately entitled to the proceeds are the plaintiffs as his assignees. If, after the payment of his debts, any thing remains, such surplus would go to him. As in case of the stockholders of a bank which has failed, and where the corporation is a party. The stockholders have an interest, for the surplus goes to them; bu't the debts must be first paid, and the action in the name of the corporation cannot be said to be for the immediate benefit of the stockholders. Their interest is contingent and possible, not direct and immediate. What is “immediate benefit?” The word immediate, according to Webster, is defined, “ acting without a medium, or without the intervention of another cause or means, producing its effect by its own direct agency.” A recovery in this action would benefit the witness only in the event that the proceeds were applied by the assignees to the payment of his debts. The benefit must be produced by or through the agency of others.

The proviso or exception in the recent English statute, 6th and 7th Yic., chap. 85, § lj is, ‘*any person in whose immediate and individual behalf any action may be brought or defended in whole or in part.” Under this exception, in Hart v. Stephens, (6 Adolph, and Ell. 987,) the husband was admitted as a witness in a suit brought by the wife’s administrator to recover the amount of a promissory note given to the wife before marriage, and upon which the husband, during the lifetime of the wife, had from time to time collected the interest. The husband could obtain nothing, until the assets were marshalled and the debts of the wife paid, and it was held that the action was not prosecuted for his immediate and individual benefit. And in Hill v. Kitching, (3 Mann. Grang. and Scott, 299,) Tindal, C. J., said that in that case the witness was competent, because, “ he has no right to lay his hand upon any portion of the money to be recovered in this action.” Yet, in that case, there was an agreement between the witness and plaintiff, that the witness should have one-half of what should be recovered. So in the same case, Maulé, J., says, “ The meaning of the proviso is, that no person who is the formal plaintiff on the record shall be called as a witness, nor any person who though not the formal plaintiff is yet substantially so.” In this case before us, the witness has no right to lay his hand upon any portion of the money to be recovered; nor is he the formal plaintiff; nor is he substantially so. The formal plaintiffs are the assignees, and they may, perhaps, be considered also the substantial plaintiffs. The assignees may be liable for the costs in case of failure to recover. It is only through these assignees, and after the creditors are paid, that the witness can reach any portion of the proceeds. We are, therefore, all of opinion, that according to the law as now established by the code, an insolvent debtor, who has assigned his property to assignees for the payment of his debts, is a competent witness in an action brought or defended by his assignees in relation to his estate.

One of the creditors of Wilder has been examined, and objection was made to his competency. His testimony, we think, in no way material; but if it were, we should consider, for the reasons before stated, that he would be competent. He cannot put his hand upon the fund; he can only obtain, through the assignees, his distributive share after their expenses are paid. He is, with the assignor, interested in the event of the suit, but neither he nor the assignor can at once appropriate to their own use the proceeds of the recovery. The assignees, in another action, may be compelled to distribute; but the money recovered in the suit must, in the first instance, come into their hands. It is possible that there may be exceptions, as where there is but a single creditor, who would be entitled to the whole proceeds, and where the subject-matter in controversy embraces the whole of the assigned estate. But, as a general rule in such cases, we think both the assignor and the creditors competent witnesses. The objection must be to their credibility rather than to their competency.

Admitting, then, the competency of these witnesses, we proceed to consider the question of .the liability of the several defendants. (After holding on the evidence that the defendants, Cram and others, were not liable, and that there must be a decree against Rockwell, who suffered the bill to be taken as confessed, the judge proceeded.)

As to the defendant, Eleazer Crabtree, the captain who signed the charter-party, he cannot be charged with the loss on the 800 bales for having exceeded his authority, for the bill- is not framed for the purpose of charging him with such loss, even if it had appeared that he had exceeded his powers, and that proceedings in chancery were proper to establish his liability. But he stands in a different position to that of the other defendants in another respect. He was the captain of the ship. He received the cotton on board at Mobile. He was informed of the prices at which the cotton was purchased, and he signed the bills of lading, which stipulated that the freight was to be paid pursuant to the charter-party — that is, that 800 bales were to be freight free on owners’ account.

We think, therefore, that he must be considered as having assented, as part owner, to take the cotton at the prices at which it was purchased at Mobile ; and that there must be a decree against him for the one-sixteenth of the loss.

The statute of limitations can hardly be a bar in this case. The account appears to have been made up by Hottinguer & Co., the consignees, on the 26th August, 1841, at Havre. When it reached New York does not appear. It had not been received by Wilder when he left the city in the latter part of September. This' suit was commenced the last day of September, or first day of October, 1847, — and as the six years, in our judgment, would not commence running until after the accounts were received by Wilder, it may be fairly inferred that it was commenced within the six years from that time.

If the parties cannot agree upon the amount, there must be a reference to determine what sums must be paid by Rockwell and E. Crabtaree. As to the other defendants, the bill must be 'dismissed with costs, to be paid out of the assigned estate. We think, under the circumstances, the assignees were justifiable in commencing the suit, and that they ought not to be personally charged .with the costs.


source: Caselaw Access Project

author: Sandford, J.

license: Public Domain

text:
    Kingsley v. Vernon.
    Where the indorser of a hill, after the receipt of notice of protest, on going to take up the bill, was informed by the holder that it had been paid, and, by such information, the indorser was prevented from collecting it of the drawer, who subsequently became insolvent, (the acceptor being insolvent at the time,) held, that the indorser was discharged from liability, although such information proved to be erroneous, and was honestly given.
    This was held upon the ground that the declarations of the holder operated as an equitable estoppel, or estoppel m pais, which concludes the party as evidence.
    The estoppel applies, not upon the ground of fraud, or wilful misrepresentation, in making the statement, but upon the ground that it will be a fraud to show that it is untrue to the prejudice of one who has acted upon the faith of the statement.
    (Before Oaklev, Ch. J., and Sandeord and Paine, J. J.)
    Nov. 11,12 ;
    Dec. 28, 1850.
    This was an action against the defendant as indorser of a bill drawn by one Davis upon John Butler, and accepted by him, payable to the order of the defendant, and by him indorsed to the plaintiff.
    The cause was tried before Sandford, J., on the 7th October, 1849. On the trial, the following facts were proved.
    The bill matured on the 29th July, 1848,*and the acceptor residing in New Jersey, the plaintiff deposited it for collection in a bank in the city of New York, who sent it to their corresjpnding bank in New Jersey. The defendant was informed with what bank the draft was deposited by the plaintiff. The draft was not paid, and the plaintiff and defendant received due notice of the protest. The New York bank, not being advised of the non-payment, after the lapse of the ordinary period for the return of protested paper, presumed the draft to have been paid, and on the 31st July, 1848, passed the amount of the draft, less the expenses of collection, to the plaintiff’s credit, and entered the credit in his bank pass-book. The defendant, on receiving notice of protest, sent his clerk to the plaintiff for the purpose, of paying the draft, and the plaintiff informed the clerk that the bank had passed the bill to his credit, and he supposed it was paid, and at the same time showed him the bank-book with the note so credited. Shortly after the bill had been credited, and on the 2d August, it was returned with the protest to the New York bank, and at once re-charged to the plaintiff in the books of the bank, but it was not re-charged on his pass-book till September 20th, 1848, when his bank-book was sent for and balanced. This was the first intimation the plaintiff had that the bill had not been paid. The plaintiff immediately called on the defendant for payment, who declined paying it. It was proved that the acceptor was insolvent at the maturity of the bill, and so continued, and that it could have been collected of the drawer up to the 23d August, 1848, at which time he became, and since had been insolvent.
    The judge left to the jury, as questions of fact: 1st. Whether the plaintiff gave the defendant the alleged information that the bill was paid? 2d. Whether the defendant, by such information, was prevented from collecting the bill? And he charged-them, as matter of law, that the defendant had a right to rely upon the information alleged to have been communicated to him by the plaintiff. The jury found a verdict for the defendant, on which judgment was rendered at the special term. From this judgment the plaintiff appealed.

      J. K Burrill, Jr., for the plaintiff,
    made the following points: — .

      1. That the liability of the indorser was fixed by the protest of the bill and notice, and the principle of estoppel in pais is inapplicable.
    2. That an estoppel in pais only arises where the party estopped had peculiar knowledge of the matters out of which the estoppel arose, or was bound to know them.

    3. That the defendant had the best legal evidence of the non-payment of the bill, in the notice of protest. He knew where it was deposited for collection, and had the same means of knowledge as the plaintiff; and that the plaintiff made no positive affirmations as to the draft, but merely stated his sources of information, and that the defendant had no right to rely on the correctness of the plaintiff’s conclusions, but should have drawn his own; citing Coke Litt. 352 (b.); Oomyn’s Digest, Estoppel, E. (4); Viner’s Ab., Estoppel, (A 2) § 7, 8.

      4. That the defendant was not a surety. The draft was given for his own debt, and he was not surety on the bill or otherwise. (Beardsley v. Warren, 6 Wend. 610; Pitt v. Congdon, 2 Comstock, R. 353.)

      It. B. Kimball, for the defendant,
    argued the following points:—
    1. That the defendant stood in the relation of surety, and that the creditor could not retain his claim against the surety, when he had deprived the surety of his remedy against his principal; citing Pitman on Prin. and Surety, p. 166.
    2. That the bank was the agent of the plaintiff, and the defendant should not be prejudiced by its acts.
   By the Court.

Sandford, J.

The jury have found, that when the defendant, immediately after the protest of the bill, sent his agent to pay it, the plaintiff informed the agent that the bill had been paid, and that this information prevented the defendant from taking up the bill and collecting it from Davis, the drawer. Was the judge right in instructing the jury that •these facts entitled the defendant to their verdict ?

In the case of Pickard v. Sears, 6 Ad. & El. 469, tbe chief justice, in delivering the opinion of the Queen’s Bench, said, “ the rule of law is clear, that where one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.”

In Freeman v. Cooke, 2 Exch. R. 654, (S. C. 12 Lond. Rep. 777,) Parke, Baron, delivering the judgment of the court, said the rule thus laid down in Pickard v. Sears, must be considered as established; and he defines the term “ wilfully” as there expressed, to mean, not merely that .the party knows his representation to be untrue, but also that if made believing it to be true, he means his representation to be acted upon, and it is acted upon accordingly.

The principle was declared by Bronson, J., in Dezell v. Odell, 3 Hill, 219, in his usual clear and forcible manner. He says, “ when a party, either by his declaration or conduct, has induced a third person to act in a particular manner, he will not after-wards be permitted to’ deny the truth of the admission, if tbe consequence would be to work an injury to such third person, or to some one claiming under him.”

Such declarations and admissions are regarded as equitable estoppels, or estoppels in pais. They conclude the party as evidence, and not as technical estoppels at common law.

The fact that the plaintiff acted in ignorance of the true state of the case, and without any bad faith, was relied upon to except this case from the principle to which we have referred. The authorities do not, however, sanction such an exception. The case of Petrie v. Feeter, 21 Wend. 172, shows that where a declaration on which another has acted is made in entire ignorance that the fact is otherwise, it will nevertheless conclude the party making it from proving the mistake to the prejudice of him who acted on the faith of such declaration.

The estoppel is applied in these cases, not upon the ground of wilful misrepresentation or fraud in making the admission or declaration, but upon tbe ground tbat it will be a fraud to show tbat it is untrue to the'prejudice of one who has acted upon the faith of the statement. In this case, the plaintiff knowing that the defendant had come to pay the bill, informed him that it had been paid. He was bound to know that this statement would induce the defendant to omit taking any measures to collect the bill of the drawer. Thus, the erroneous information, though honestly given, caused the defendant to lose the opportunity of collecting the bill; and the law very justly precludes the plaintiff from proving in a suit against him upon the bill, that it was not paid. The plaintiff should have sought his remedy against the bank that acted as his agent, on which the loss at that time unquestionably rested, instead of suing the defendant.

The principle which we have stated applies to this case with the greater force, for the reason that the defendant, as the indorser of the bill, stood in the relation of surety for Davis, the drawer, to the plaintiff as the holder of the bill. Indeed, this relation of the parties would suffice to exonerate the defendant, on -the distinct ground that the creditor cannot retain his claim against the surety, while he prevents the latter from obtaining security or payment from the principal debtor.

In our opinion the charge of the judge was right, and there is no good reason for disturbing the verdict. The judgment at the special term must therefore be affirmed.

Smith v. The City of New York.


author: Oakley, Ch. J.

text:
    Martin v. McCormick.
    In order to recover back money paid under a contract, the contract must be rescinded; and that cannot be done where the parties cannot be restored to their original rights and position.
    Thus, where under a mistake of fact, the plaintiff bought of the defendant an outstanding lease of the plaintiff’s land, which the defendant assigned with a covenant against ipcumbrances; and before discovering the mistake, the plaintiff conveyed the lease with the defendant’s covenant and the land itself to a stranger; it was held, that the plaintiff could not recover back the money paid to the defendant for the lea9e.
    (Before Oakley, Ch. X, and Campbell-and Paine, X X)
    Sept. 26;

      Dec. 28, 1850.
    This action was commenced to recover tbe sum of eighteen hundred dollars, alleged to have been paid by the plaintiff to the defendant, under a mistake of fact. The facts appear fully in the opinion of the court.
    The cause was heard upon the pleadings, before Justice Mason, at the special term in February, 1850. Upon the hearing, judgment was rendered for the defendant, and an appeal was taken by the plaintiff to the general term.

      B. Mott and E. S. Van Winkle, for the plaintiff.

      J. T. Brady and P. A. Gowdrey, for the defendant.
   By the Court.

Oakley, Ch. J.

This case comes before us, upon an appeal from a judgment rendered at special term. The case was heard upon the pleadings alone, and judgment was rendered for the defendant.

The plaintiff was the owner of a house and lot situated on the south side of Fourth-street, between the First and Second aven ues, upon which the taxes for the years 1835, ’36, and ’38, had not been paid. On the 1st day of October, 1840, the premises were sold by the corporation, for the unpaid taxes, and at the sale were purchased by the defendant, for the term of one hundred years. On the 12th of October, 1844, the defendant served upon the plaintiff, a notice, pursuant to the act of 1841, that the premises in question had been sold and conveyed to him for the term of one hundred years, and that if plaintiff did not redeem them within six months, the lease would become absolute, &c. Before the actual execution of the lease, and on 21st April following the notice, the plaintiff paid- into the office of the city comptroller the amount of the sale, interest, and charges, which sum was afterwards returned by that officer, and the plaintiff was at the same time informed, that the time of redemption had expired previous to its payment. A written notice to the same effect was also served upon him by the defendant, and that in consequence the lease had become absolute.

The notices given were untrue in point of fact, as no lease had been executed. It was the custom, however, in the comptroller’s office, to consider the lease as executed, when the time for redemption had expired, and the notices seem to have been given in good faith, and without any intention of deceiving the plaintiff.

Upon this state of facts as represented to him, the plaintiff entered into negotiations with the defendant, which resulted in an arrangement by which the defendant agreed to, and did assign the lease in question to the plaintiff, for the consideration of $1800. The assignment contained a covenant that the premises were free and clear of and from all manner of assessments and incumbrances. After the payment of the money, the plaintiff discovered, that in point of fact the premises had not been conveyed to the defendant as stated in his notice of the 12th October, and that in consequence of a defect in the publication of the necessary notice, the time of redemption had not expired, when he paid the amount into the comptroller’s office; and that the lease was not executed and delivered until July, 1845.

The plaintiff claims to be entitled to recover the amount paid by him to the defendant, as having been paid under a mistake of facts, or a misrepresentation on the part of the defendant.

There is no proof of fraud on the part of the defendant. He seems to have acted in good faith, and in ignorance of the fact that the time for redemption had not expired.

The judge, before whom the case was heard at special term, held, that the plaintiff could not recover, mainly, on the ground that he had the same means of knowledge as the defendant, and that a party cannot recover back money voluntarily paid, on the ground of mistake, if he knew, or had full means of knowledge of the facts with the other party.

Without adverting particularly to the ground of this decision, there is a feature in- this case, which renders the decision still more solid. It will be observed, that the assignment of this lease contains a covenant, by which the defendant may be made liable to respond to the plaintiff. The plaintiff has parted with the lease, and conveyed the property to a third person, in whom this covenant is now vested. The rule of law is well settled, that where a contract is entered into, and money paid, to allow a party to recover the money back, he must rescind the contract ; and the contract cannot be rescinded where the parties cannot be restored to their original rights and position. Here, as the plaintiff has parted with the lease and covenant, the defendant cannot, in this suit, be absolved from the liability he thereby assumed. The contract cannot therefore be rescinded ; and hence the defendant cannot be made to refund to the plaintiff the consideration received upon the assignment of the ■lease.

The judgment at special term must be affirmed.


text:
    Howard v. Ellis and others.
    Where one enters into possession of vacant demised premises by the consent or permission of the tenant, he will be considered in respect of the landlord’s rights, as substituted in the place of the tenant, although he disclaim all privity with the tenant.
    H. leased to E., one of a Arm of T. <fc E., a store designed for E.’s sole use, as a jewelry and fancy goods store, in expectation that he and T. would dissolve. The lease contained a restriction against the use of the store for any other business. T. and E. did not dissolve, and E. desired to relinquish the lease, but could not agree with H. on the terms. E. never entered into actual possession, and while the store was vacant, T. executed a lease of it to B. for a hat store, for a term corresponding with the unexpired term of E.’s lease. T. delivered the key to B. Both T. and B. disclaimed all connection with E., and denied that .he had been consulted, or had any connection with either of them in the transaction. Held, that B. must be considered, in respect of H.’s rights, as substituted in the place of E, the lessee.
    Where a lessee covenants for a particular use of demised premises, equity will restrict him to that use by injunction.
    Dec. 31, 1850;
    January 11, 1851.
    The complaint in this action was filed for the purpose of obtaining a perpetual injunction to restrain the defendants, Beach and Lockhart, from using or occupying the premises on the corner of Reade-street and Broadway, in the lower story of the Irving House, for the purpose of a hat store, or for making and selling hats, or for any other purpose, and also to restrain the defendant, Ellis, from permitting the premises to be used for any other purpose than as a jewelry and fancy goods store. Tiffany & Young were made parties defendant, it being alleged that, by an agreement with Ellis, they had become interested in the lease, and that they were colluding'with the other defendants, to the injury of the plaintiff
    In December, 1849, Howard, the plaintifij who was the proprietor of the Irving House, leased to the defendant, Ellis, the premises in question for five years from May 1, 1850, to be used for the purposes of a jewelry and fancy goods store, at an annual rent of $4500. Ellis was at that time a member of the firm of Tiffany, Young & Ellis, dealing in such goods a few doors below. The firm was composed of Ellis and the defendants, Tiffany & Young; and in consequence of an anticipated dissolution of that firm on the 1st of January following, he hired the premises for the purpose of carrying on the same business on his individual account. The lease was recorded in August, 1850; and it contained a covenant on the part of Ellis that the premises should not be used for any other purpose than a j.ewelry and fancy goods store, nor be underlet, nor the lease assigned, without the written consent of Howard first had.
    Before the commencement of the term provided for in the lease, Ellis, in consequence of the dissolution of his firm having been abandoned, was desirous of being relieved from the lease, and applied to Howard to accept a surrender, offering, at the same time, to make such a surrender, provided Howard would stipulate not to let the store for the jewelry and fancy goods business. Howard offered to accept an unconditional surrender, which Ellis refused to make. A formal possession of the premises was tendered to Ellis, but he has never entered upon their actual occupation.
    Subsequently, various applications were made to Howard by parties desirous of renting the premises, but he declined to interfere in the renting of them, and uniformly referred the applicants to Ellis, as being the lessee of the premises. Ellis hereupon assumed the position that he was not the lessee of the premises, and refusing to pay rent, suits were instituted by Howard for the recovery of the same, which are still pending. A suit is also pending, commenced by Ellis against Howard, to procure a cancellation and surrender of the lease, and for the appointment of a receiver during the litigation.
    The premises continued to be vacant until about the 27th of-November, 1850, at which time the defendants, Beach & Lock-hart, entered the same, under a lease executed by Tiffany for the unexpired period mentioned in the lease to Ellis, and at the satiae rent. This lease contained covenants that if either party to -the lease should be evicted or ousted by judicial order or otherwise, the lease should be void, and the lessor covenanted to defend the lessees against all molestation and hinderance in the use of the premises by all persons, except the plaintiff. Beach & Lockhart,' claiming under this lease, were fitting up the premises as a hat store. The plaintiff charged that, by some agreement with Ellis, Tiffany & Young were to be and were interested in the lease. and premises hired of him, and that the lease to Beach & Lockhart was executed by Tiffany in collusion with Ellis, and with his concurrence, for the purpose of evading the consequences which would result from its execution by Ellis, and that th'e defendants combined together for the purpose of evading the. covenants in the lease to Ellis, and in fraud thereof. The- plaintiff further charged that, besides the notice arising from the recording of the lease to Ellis, the defendants, Beach & Lockhart, had actual notice of that lease, and the terms and conditions thereof, and that they knew that Tiffany had no legal interest in the lease or premises. Circumstances were set forth sustaining the truth of the charges. On the complaint and affidavits showing the above facts, the plaintiff obtained a preliminary injunction, restraining Ellis, Beach, and Lockhart, as in the complaint prayed.
    The defendants, Beach & Lockhart, on affidavits moved to dissolve the injunction. They produced an affidavit of Tiffany, in which he disavowed any other interest in the premises than as a trespasser, and stated, that he had never acquired any interest in the same, by any agreement with Ellis, and that the lease to Beach & Lockhart was executed by him without any previous consultation with Ellis, and Beach & Lockhart likewise stated that they negotiated entirely with Tiffany, and had no connection with Ellis. .The defendants also set up a conversation between Tiffany and the plaintiff, which, they contended, operated as a waiver of the covenants in the lease to Ellis, and as a license to the defendants to enter. The plaintiff read opposing affidavits, rebutting the statements of the defendants, and explaining the conversation with Tiffany relied on by, the defendants. Beach & Lockhart denied any notice of the lease to Ellis, or of the. restriction in it, till after .they received their lease from Tiffany. An affidavit on the part of the plaintiff set forth the express notice of both to one of the firm of B. & L., before they took, the lease. Tiffany & Ellis both deposed that T. made the lease without Ellis’s concurrence, sanction, or aid, in any manner. It appeared that B. & L. obtained the keys of the premises from Tiffany.
    The motion was argued before Sandford, J., at special term. He consulted the Chief Justice and Paine, J., and the decision was made .with their concurrence.

      M. S. Brewster and J. T. Brady, for the defendants.
    I. The plaintiff shows no right to an injunction. Even if it would be competent for the court to restrain a mere breach of covenant, that power could only be exercised, when between the plaintiff and the person sought to be restrained there exists privity of contract or privity of estate.
    In this case there is no such privity between Howard and any of the defendants, except Ellis.
    1. Ellis was the alleged lessee. He has never assigned to either of the other defendants. Tiffany made a lease to Beach & Lockhart, who are now in possession. If that were a trespass on the part of either, the only person who can prosecute for the tort is Ellis. -(1 Chitty’s PI. 201; Story’s Eq. PI. 227.)
    2. Tiffany states that Beach & Lockhart went into possession with notice to, and an assent from Howard, by which the latter is estopped. (Dezell v. Odell, 3d Hill, 215; Chautauque County Bank v. White, 6 Barbour, 589.)
    3. The extent of the coxxrt’s jurisdiction to allow injunctions is now regulated by the code, and this case is not within the provisions of the code.
    II. The complaint is demurrable, because it presents as defendants persons who, if at all, are liable for their separate acts, in none of which are they shown to have concurred or combined.
    III. As to Ellis, it is not shown that he is doing any thing which renders him amenable to the jurisdiction of the court. He does not acknowledge himself to be the tenant of Howard, ■ nor has he put Beach or Lockhart in possession.
    IV. Young is not connected with the transaction mentioned in the complaint.
    V. This is a very oppressive proceeding. The landlord claims the rent, and refuses to declare the lease forfeited. At the same time he deprives Ellis .of any opportunity to enjoy the premises. He must either elect to forfeit the lease, in which event, of course, there is no necessity for this suit, or, affirming the lease, he must prosecute any action to which he is entitled, against Ellis alone.

      G. A. Davison and G. O’Gonor, for the plaintiff.
    The plaintiff is entitled to retain the injunction.
    In Steward v. Winters, (4 Sandf. Ch. Rep. 587,) it was decided, that where a lease for a store contained a clause that it should be occupied for the regular dry goods jobbing business, and for no other, the lessee cannot' carry on the business of an auctioneer. That if the tenant conduct the auction business in the store, the lessor may restrain him from pursuing that business, by injunction. ' And that where a lessee covenants for a particular use of the demised premises, equity will restrict him to that use, without any irreparable or even substantial injury being shown from a breach of the covenant. Many cases were cited in the decision. We also refer to 3 Paige, 254; 8 Ibid. 351; 4 Simons, 13; 5 Vesey, 555; 6 Ves. 104; 2 Story, Eq. Jur. 928; also 4 Sandf. 72, 11th point.
    The alleged license is no defence. (See 4 Sandf. Ch. Rep. 467 and 468. Also the case of Wolfe v. Frost, Ibid. 72, and particularly pages 90, 91, 92, 93.).
    Nor is a parol license valid, where the instrument or lease requires the license to be in writing.
   Sandford, J.

The defendants, Tiffany and Beach & Lock-hart, attempt to separate themselves from .Ellis, and boldly assuming that they are trespassers, insist .that there is no privity of- contract or estate between them and the plaintiff. It is an-ingenious attempt to obtain a rent from, the premises by using tbem for a purpose prohibited in the lease, but it cannot prevail. The facts prove too plainly to admit of a' doubt, that Tiffany, and Beach. & Lockhart through him, entéred into the possession of these premises by the consent or permission of Ellis. All the circumstances point irresistibly to that conclusion. The consequence is, that Beach & Lockhart must be considered, in respect of the plaintiff’s rights, as substituted in the place of Ellis, the plaintiff’s lessee. (Benson v. Bolles, 8 Wend. 175.)

Treating them as standing in the place of Ellis, the plaintiff is entitled to an injunction to restrain the use of the premises in violation of the restriction in the lease. This was decided in a like case in Steward v. Winters, (1 Sand. Ch. R. 587,) and it is unnecessary for me to repeat the grounds upon which the court thus interferes. The code of procedure does not alter the rule of equity respecting the allowance of injunctions.

• As to the parol license from the plaintiff, set up in the defendant’s affidavits, it suffices to say, for the purposes of this motion, that it is fully denied.

Motion to dissolve the injunction denied.