author: O’Gorman, J.

text:
    MICHAEL J. DERLETH, Respondent, v. HEART P. DEGRAAF, et al., Appellants.

      Res adjudicata—account stated—dismissal of com/plaint—contract to procure third party to deliver his notes secured by chattel mortgage— damages for breach—New trial—when exception not neaessa/ry.

    A judgment against the plaintiff upon a cause of action founded on an account stated, is not a bar to an action for goods sold and delivered,, although such sale and delivery was the subject in reference to which it was claimed there was an account stated.
    Dismissal of complaint in actions at law does not operate as res adjudicata,.

    Assuming an agreement to have been entered into, whereby it was agreed between the plaintiff and defendant that the goods of the plaintiff should be sold and delivered to the defendant, to be by him paid for partly in cash when received from one McK., with and to whom defendant had contracted to furnish them, and the balance absolutely in notes of McIC., secured by his chattel mortgage, the notes to be indorsed by defendant without recourse, and that defendant took all the risk of' McK. ’s failing to deliver the notes and the chattel mortgage,—Held, that as MoK.’s notes if delivered would have been worthless, unless secured by a sufficient mortgage, and as the only mortgage which could be got from McK. was a second one, and as a security was without any value, the damages for the breach were merely nominal.

      Decided March 2, 1885.
    In the consideration of a motion for a new trial on the minutes, the strict rules as to objection and exception are not always applied.
    Where the interests of justice require, a point may be considered by the general term, and a new trial granted thereon, although it was not raised at the trial or called to the attention of the trial judge.
    Before Sedgwick, Ch. J., and Truax and O’Gormas, JJ.
    Appeal from a judgment entered on a verdict in favor of the plaintiff and against the defendants, and from an order denying a motion on behalf of the defendants and appellants, for a new trial on the judge’s minutes, and to set aside the verdict.
    The facts appear in the opinion.

      James B. Marvin, attorney, and of counsel for appellants,
    on the law on the questions considered by the court, argued :—I. The former action is a bar. The defendants in that case alleged the facts of the transaction out of which the claim arose, and set up the same contract that is involved here. The action was not tried as upon an account" stated on either side. The plaintiff made the same proof that he would have made had he sued for the sale of the goods in question. The defendants, to meet the plaintiff’s claim, while denying that there had been an account stated, set up facts in defense of any liability whatever. What was involved in a particular case is not always to be determined by the form of the complaint, but from what was developed upon the trial. The plaintiff in the first instance proved the account, from that, time the action became one not for an account stated but to recover as upon a sale of goods, and the defendants’ answer and proofs were directed to such an action. Although there was a dismissal of the complaint in the former action, yet the judgment is just as effectual as a bar as if there had been a verdict in defendants’ favor. On the trial in that case, at the close of the evidence on both sides, the defendants moved a dismissal of the complaint upon all the facts. The court, in dismissing the complaint, held that “the weight of testimony shows that the Derleths were to share in the responsibility in equal proportion with these defendants; that it was a matter of joint account between the parties, a species of joint adventure.” A judgment so rendered is a bar to a subsequent suit involving the same subject-matter between the same parties (Code Civ. Pro. § 1209 ; 2 Civ. Pro. 254; People v. Smith, 51 Barb. 360 ; Audubon v. Excelsior Ins. Co., 27 N. Y. 216, 221; Patrick v. Shaffer, 94 N. Y. 423, and cases cited; also 1 Johns. Ch. 543; 54 N. Y. 644 ; 60 Barb. 617; 6 N. Y. 137 ; 41 Ib. 113 ; 32 Ib. 281 ; 2 Com. 522 ; 2 Seld. 137; 3 Barb. Ch. 341 ; 4 N. Y. 71 ; 14 Ib. 329 ; 32 Ib. 290 ; 62 Ib. 372 ; 3 Cow. 120 ; 4 Ib. 559 ; 3 Denio, 238 ; 6 N. Y. 136 ; 43 N. Y. Supr. 9 ; 15 Abb. 191 ; 12 N. Y. 343 ; 3 Com. 522 ; 5 Sandf. 134).
    II. The defendants used due diligence in their efforts to procure the notes and mortgage from McKinley, and failing in that they brought suit against him to recover the value of the goods. . They brought suit in their own name because they had made the contract with McKinley, although the Derleths were interested in the result. The defendants took every legal remedy for the recovery of the money. If a recovery had been had the Derleths would have been entitled to their share. McKinley turned out to be a swindler and defrauded both parties.
    III. The claim of respondent, that the measure of damages for appellants’ failure to deliver the McKinley notes is the value of the goods sold less the money paid thereon, is untenable. Assuming, for the purpose of the argument only, that the appellants were bound to deliver the notes in any event, the measure of damages is the value of the McKinley notes. These would have been worthless, as McKinley was proved to be insolvent. This was proven by the recovery of a judgment against him and a return of an execution thereon unsatisfied in the appellants’ suit against him (Potter v. Merchants’ Bank, 28 N. Y. 641; Thayer v. Manley, 73 N. Y. 305, 307-8; Hynes v. Patterson, 95 N. Y. 1; 7 Bosw. 515 ; aff’d, 2 Keyes, 673). It is to be borne in mind that the notes to be furnished were the notes of a third party.
    The cases cited by respondent are all cases where the defendant had agreed to pay his own debt in goods of a certain character, but no particular goods which were his own property, of a value equal to his debt.
    They are to be distinguished from the case at bar. See Moore v. Hudson R. R. Co., 12 Barb. 156, 158. Also, Dowdney v. McCullom, 59 N. Y. 367.
    IV. The respondent claims that the question as to the measure of damages cannot be raised; it was not taken at the trial. The defendant requested the court to direct a verdict for defendants, and an exception was taken to the refusal to so direct. This enables the defendant to urge on appeal any existing ground for such request. Besides, the question can-be presented without any exception. It is also quite competent for the general term to raise the question on appeal (Gossler v. Lissberger, 19 Weekly Dig. 429, and cases cited).

      Nelson Smith, attorney, and of counsel for respondent,
    on the law on the questions considered by the court, argued :—I. The plaintiff was entitled to recover the balance due for the goods sold and delivered, and that was the amount which the jury assessed, with interest from the time of the demand of the notes from the defendants. 1st. Where a contract is payable in anything else than money, the damages to be recovered for a failure to deliver payment in specie, as indicated by the agreement, is the amount of money due oh the contract, and not the value of the article in which the money was to be paid (Herrick v. Carter, 56 Barb. 41-45 ; Pinney v. Gleason, 5 Wend. 393 ; Rockwell v. Rockwell, 4 Hill, 164). 2d. No question was made on the trial but that the rule of damages adopted by the jury was the correct one. No request was made by the defendants for any other ruling. Without a request, the defendants arc not in a situation to raise the question on this appeal. 3d. In addition to this, it is shown by the evidence that the plaintiffs were entitled to be paid by the defendants in the notes of McKinley, secured by a chattel mortgage, and the letter of McKinley to defendants, put in evidence by defendants shows that McKinley was responsible. There is no proof that he was not responsible at the time the notes were demanded by Derleth of defendants, in the fore part of January, 1874, and no evidence whatever that the notes secured by a mortgage, would not have been worth their face at any time. The presumption of law is that a note or bond is worth par (Harris v. Moody, 30 N. Y. 206-78 ; Ingalls v. Lord, 1 Cow. 243 ; Sherman v. Wells, 28 Barb. 41 ; Sedgwick on Damages, 512-13).
    II. The defendant’s exceptions to the rulings of the court refusing to admit the record of the judgment in Volkening v. Degraaf as a bar, were not well taken. The Volkening suit was predicated solely upon an account stated, as a cause of action. The judgment was a dismissal of the complaint—a nonsuit—for want of evidence sufficient to go to the jury upon that allegation. There was no evidence offered or received except as affecting the issue whether there had been an account stated by the defendants, as that term is technically understood in law. Any evidence not affecting that issue was immaterial, and cannot be considered as widening the issue, nor upon the question of res adjudicada. The dismissal of a complaint, or nonsuit, in a legal action, is not a bar (Brentnall v. Foster, 7 Wend. 103; Audubon v. Exch. Ins. Co., 27 N. Y. 216). In a suit in equity the rule is different. There the dismissal of the bill is a bar, unless without prejudice (People v. Vilas, 36 N. Y. 460).
    IH. The risk that the parties spoke of had reference to the risk whether McKinley would pay the notes when they became due—not whether he would give them to the defendants.
    IV. The request to charge that there was no evidence that the defendants failed to take proper steps to get the notes, was properly refused. Derleth had nothing to do ■with the steps which the defendants took. Besides, there was evidence that the defendants had failed. They had brought an action for goods sold, instead of replevying the property in case the notes were hot given. Such action was a waiver of the right to replevy, as was also the delivery of the goods by the defendants to McKinley, without getting the mortgage (Smith v. Lyons, 5 N. Y. 41).
   By the Court.

O’Gorman, J.

The action is for goods alleged in the complaint to have been sold and delivered by Charles and Ferdinand Derleth, composing the firm of Derleth Brothers, in 1873 and 1874 to the defendants, composing the firm of Degraaf & Taylor. Both the plaintiffs and the defendants were engaged in the manufacture of furniture.

In June, 1875, the firm of Derleth Brothers, by an assignment in writing, transferred and assigned to one Henry Volkening, all their claims against Degraaf & Taylor, for goods sold and delivered, and on an account stated and settled between them on or about November 28, 1874, showing a, balance due to Derleth Brothers, of $2,927.77. By subsequent assignments the claim now in suit was transferred and assigned to the plaintiff.

The litigation as to the transactions in suit has been a long one.

Henry Volkening, as such assignee, in 1875, brought suit in this court against Degraaf & Taylor, the defendants herein, claiming judgment against them for the sum of $2,609.50, with interest, from November 28, 1874, alleging that said sum was the balance found to be due by them to Derleth Brothers, on an accounting between the firms of Derleth Brothers and Degraaf & Taylor, had on or about November 28, 1874. That action was tried on June 20, i 1877, and resulted in the dismissal of the plaintiff’s complaint, on the ground, as substantially stated by the learned trial judge, that the weight of testimony showed that the plaintiff’s goods (being articles of furniture), were used in fitting up the saloon of one McKinley, and were furnished by Derleth Brothers, under a special contract with Degraaf & Taylor, both firms to share in. all the responsibility of the transaction; that it was a species of joint adventure ; and that the action, being brought upon an account stated, was not sustained by the evidence. From this judgment against the plaintiff in that action, an appeal was taken to the general term of this court, which was argued in November, 1878, and the general term affirmed the judgment, with costs, holding that the action was brought on an account alleged to have been stated and settled between Derleth Brothers and Degraaf & Taylor, and that on the evidence that action could not be maintained in the form in which it was brought; that all the essential elements of an account stated seemed to have been wanting; that if defendants had been guilty of any breach of contract with Derleth Brothers, they might be held to answer in another action founded on such breach or offense.

But the plaintiffs were bound to allege their true cause of action, and having failed to prove the one alleged, the complaint was properly dismissed. It was not a variance, but a failure of proof (Volkening v. Degraaf, 44 Super. Ct. 424). From this decision of the general term of this court, the plaintiff Arolkening appealed to the court of appeals. By that court the decision of the general term was sustained (81 N. Y. 268).

The court of appeals, in its opinion, held that the cause of action in the complaint was on an account stated, and nothing else ; that plaintiffs had wholly failed to make good that cause of action; that no amendment of the pleadings having been asked below, it was right to dismiss the complaint for failure to make proof of what it averred. That decision was made in June, 1880.

The action in the case now at bar was begun in December, 1879, and is based wholly on a claim for goods sold and delivered by Derleth Brothers to the defendants, and not upon any claim of an account stated and settled between them. This action was tried on April 4, 1883, before Judge Ingraham and a jury, who failed to agree on a verdict. In December, 1883, this action was tried again before Judge O’Gorman and a jury, who failed to agree on a verdict. In April, 1884, this action was again tried before Judge Truax and a jury, who found a verdict in favor of the plaintiff for $4,214.72, and from the judgment entered thereon this appeal is taken.

From this long litigation the court is, no doubt, so well possessed of the facts of the case and the evidence, that a statement of them in detail is now unnecessary. The' testimony has been substantially the same in all the various trials above referred to.

The first question of law presented to the court in the present appeal is as to the right of the defendants to put the record of the action of Volkening v. Degraaf and another in evidence, as a bar to any recovery in this action, as res adjudicata, and a sufficient cause for dismissal of the plaintiff’s complaint.

The learned tidal judge did not, in my opinion, err in refusing to admit this record in evidence and in refusing to treat it as a bar to this action. The action of Volkening v. Degraaf and another was founded specifically on the allegation that the amount claimed to be due to the Derleth Brothers, by the defendants, had been ascertained by an accounting between these two firms. In support of this cause of action it was held that no evidence was given, and because of the total failure of the plaintiff in that action to support that claim by proof, and on that account alone, his complaint was dismissed. It matters nothing that the testimony of witnesses in that case was substantially the same as that produced at the trial of the case at bar. The issues, to support which the testimony was introduced, were in these cases, in form and in substance, wholly different. The plaintiffs claim in the present action on goods sold, was not considered in Volkening v. Degraaf and Taylor. In order that the decision in one case can control another, the issues in both must be identical, not only in name, but in fact and substance (Palmer v. Hussey, 87 N. Y. 303). There was, therefore, strictly speaking, no adjudication of Volkening v. Degraaf and Taylor, entitling it to be pleaded as a bar to the present action.

Again, in Volkening v. Degraaf and Taylor, the complaint was dismissed ; and it has been held, that in such case, the decision is not on the issues in the case, which remain still undetermined and the case is not yet u res adjudicata ” (People v. Vilas, 36 N. Y. 459 ; Code, § 1209).

The contention between the plaintiff and defendants, as to the facts of the case at bar, depended wholly on the nature of the contract between Derleth Brothers and the defendants, Degraaf & Taylor, under which the goods of the former firm were furnished by Derleth Brothers for the saloon of McKinley. To ascertain what this contract really was, it was necessary to consider a paper writing signed by both firms (which paper, as was conceded, did not contain all the agreement between them), a receipt signed by Derleth Brothers, and various bills furnished by Derleth Brothers to Degraaf & Taylor ; and it was necessary also to weigh and consider the testimony, as to a certain conversation, alleged on the part of the plaintiff to have occurred between Ferdinand Derleth, one of the firm of Derleth Brothers, and Mr. Taylor, one of the defendants, a day or two before the said written paper purporting to be a contract, was signed. The occurrence of this conversation was denied by the defendants.

The attitude of the parties toward one another was this : Derleth Brothers had been in the habit for years, of supplying furniture, in the rough, to Degraaf & Taylor who used to complete the furniture, polish it, and fit it for the use of their customers. In October, 1813, defendant Taylor told Ferdinand Derleth, one of Derleth Brothers, that he (Taylor) had a job to fit up a saloon for one McKinley, and wanted to know how much Derleth Brothers would charge to make fixtures for it. Taylor proposed that payment should be made to Derleth Brothers," part in cash and part in McKinley’s notes secured by his chattel mortgage, and Degraaf & Taylor were to indorse the notes without recourse. Ferdinand Derleth said that he desired to consult his brother, and came to Taylor the next day and said, “Well, I have talked with my brother about it, and we have come to the conclusion that if you can afford to take the risk, we can.” These conversations resulted in the preparation of a written fist of goods to be furnished by Derleth Brothers for McKinley’s saloon, with their prices for the same, amounting in all to $3,139.00. This paper was headed, “Derleth for McKinley’s saloon,” and, at the foot of the figures, was this sentence : “ Derleth to receive his proportion of the $3,000 cash paid by McKinley, and to take the notes of McKinley for balance, without recourse—$-cash to be paid when received from McKinley,”—and it was signed : “ J. Richards, 0. & F, Derleth.”

Richards was, In 1813 and 1814, a member of the firm of Degraaf & Taylor.

The furniture was furnished by Derleth Brothers, and delivered at defendants’ store. Derleth Brothers received from defendants, $1,000 in cash, out of cash paid defendants by McKinley. This was all that the defendants received from him. Their contract with him was completely performed about the tenth or twelfth of January, 1814, by delivery to him of all the goods. About that time, McKinley absented himself from his business and engaged in a drunken debauch. He gave to one Ward a chattel mortgage for $4,000, covering all the goods furnished under the contract. This mortgage was filed on January 12, 1814, and exhausted all the security ; for it is in evidence that the goods, if sold, would not realize more than $4,000, and when Taylor, one of the defendants, was able to obtain an interview with McKinley, he refused to give any notes, and offered a second mortgage on the same property, which would have been wholly without value. The defendants thereupon brought an action against McKinley, obtained judgment, and exhausted all legal means to recover the price of the goods furnished to him, but wholly failed to recover anything from him.

The defendants, therefore, failed to deliver to the plaintiffs any of McKinley’s notes, and this action is brought to recover from the defendants the balance of the price of the goods furnished by Derleth Brothers, and unpaid, as for goods sold and delivered by Derleth Brothers to defendants.

The defendant’s position is, that the transaction was not one of goods sold and delivered to themselves, but of goods furnished to McKinley, on a special agreement between defendants and Derleth Brothers ; that the two firms were to take the risk of the performance by McKinley of the contract between defendants and him ; that among those risks was that of McKinley failing to deliver the notes ; and, that if he failed to do so, the defendants were not to be liable to Derleth Brothers for the amount of the notes, but Derleth Brothers should share the loss with the defendants.

In support of their contention, they rely mainly on the above mentioned conversations and memorandum, and on a receipt from defendants, signed Derleth Brothers, in December, 1814, of a sum of money for all demands to date,—“ except the unsettled matter between us and John McKinley.”

The plaintiff, on the other hand, claims that the only risk assumed by Derleth Brothers was of the non-payment of the notes of McKinley, and that the non-delivery of the notes of McKinley to defendants was a risk to be borne wholly by them.

In support of this position, the plaintiff gave evidence of a conversation between Ferdinand Derleth and said Taylor a few days before December 5, 1874 (the date of the list and memorandum), in which conversation, he (Derleth) said to Taylor, “ Suppose you deliver all these goods and never get the notes ? What then ?” Taylor then said, “That’s none of your business. I will get the notes and pay you with them.” This conversation Derleth testified took place in the shop of Derleth Brothers in Crosby street. Taylor, in his testimony, denied that such conversation ever took place.

If, as the plaintiff contends, the intention and agreement of the parties were, that the goods of Derleth Brothers were sold and delivered to defendants, to be by them paid for, partly in cash, when received from McKinley, and the balance absolutely in notes of McKinley secured by mortgage, and that defendants took all the risk of McKinley’s failing to deliver the notes, then Derleth Brothers, or their assignees, were entitled to recover from defendants, on their failure to deliver the notes, such damages as Derleth Brothers were entitled to receive for the defendants’ breach of contract.

If, on the other hand, as claimed by the defendants, ‘ . the agreement was special, and meant that Derleth Brothers and the defendants were to enter into a joint venture, assuming joint risks, one of which was the failure of McKinley to deliver his notes, then the plaintiff’s action should fail.

That was the issue in the case, and out of the conflict of testimony, and by weighing aE the testimony, and by giving to the testimony of each witness its proper value, this issue was to be decided.

This was pecuharly a question for the jury, under the right instruction of the court. The jury found a verdict for the plaintiff, sustaining the claim that Derleth Brothers had sold and delivered the goods to Degraaf & Taylor, and that on their failure to deliver the notes of McKinley they were hable in damages. Although this case should stand on its own merits, and should be decided according to the evidence laid before the court and jury, irrespective of any evidence presented in any other action, or in any former trial of this action, yet it may not be unworthy of notice, that on the testimony presented in the case of Volkening v. Degraaf & Taylor, above referred to, and which case subsequently was considered by the court of appeals (81 N. Y. 268), the learned trial judge in his charge to the jury expressed the opinion, that the transaction between Derleth Brothers and Degraaf & Taylor, which is the basis of the action now at bar, was out of the ordinary course of dealing between these two firms, and rested on a separate agreement, which constituted a sort of joint adventure between them ; that it was agreed that the work should be proportioned between them ; that Derleth Brothers would take their proportion of the cash when received, and of the notes when received by Degraaf & Taylor from McKinley, and moreover take the notes without recourse. This opinion, however, thus expressed, was coupled with the observation of the learned trial judge, that it was unnecessary to determine in that action what were the precise rights of the two firms under the special contract, and that, whatever these rights were, they could not be enforced in that action.

The court of appeals, in their opinion, take a similar view of the legal effect of the evidence in that case (Volkening v. Degraaf, 81 N. Y. 271). “There is no room in the testimony,” they say, “for the claim that the defendants were in any sense the guarantors of McKinley's ability to pay. The most that can be claimed from the testimony is, that the defendants should, as good and vigilant business men, bring the contract between them and McKinley to a close in due time ; get from him the money and notes and chattel mortgage that he was to give, and turn over to the plaintiff his part thereof. If McKinley would not, on due endeavor by the defendants, pay money or give notes, the defendants were not to be holden to the plaintiff for his share.” This opinion, which must also be regarded as only obiter, and by no means controlling the case at bar, is yet not without interest in the present discussion.

But the jury in the case at bar, in judging of the evidence before them, arrived at a different result, and this court cannot say that their verdict is against the weight of the evidence, or of such evidence as they may have deemed most worthy of belief, in so far as such evidence supports the inference that the defendants contracted absolutely to deliver the notes of McKinley to Derleth Brothers, in payment of the goods furnished by them, and in so far as the verdict held the defendants answerable to Derleth Brothers in damages on account of their failure to deliver the notes.

But the question still remains, what should be the measure of damages for breach of this contract.

The learned counsel for the plaintiff contended that plaintiff was entitled to recover the balance due for goods sold by Derleth Brothers in cash, with interest from the time of demand of the notes, and the jury, in their verdict seem to have followed that theory. In ■ this I think the jury erred.

The contract of the defendants was to deliver to Derleth Brothers the notes of McKinley secured by his chattel mortgage. They assumed no responsibility for the payment of the notes ; but on the contrary, their agreement was that the notes should be indorsed by defendants without recourse. McKinley refused to deliver to defendants any notes. But his notes, if he had delivered them, unless secured by a sufficient chattel mortgage, would have been worthless ; and the only chattel mortgage, he would give, and which he claimed was all the contract called for, was a second mortgage, and that, as a security, was without any value. Delivery of the McKinley notes to the plaintiff would, therefore, have been of no apparent service to the plaintiffs, and failure to deliver the notes to them caused them no loss.

The amount found by the verdict as damages in favor of the plaintiffs, should have been no more than would have placed them in a position, as favorable as they would have occupied, if the McKinley notes had been delivered to them. The verdict was for $4,214, being the whole amount of their claim, and it placed them in a position far better than they could have occupied if the McKinley notes had been placed in their hands. In effect, the verdict held the defendants to all the responsibility of guarantors of payment of the notes, as if they had been delivered, a responsibility, which the defendants, by their contract with the plaintiffs, expressly declined to assume.

In Harris v. Moody (30 N. Y. 278), cited by the learned counsel for the plaintiff, it was the opinion of the court, that in an action to recover possession of certain bonds of the state of Michigan, the measure of damages should be the face value of the bonds, unless their value was proved to he less. In Potter v. Merchants’ Bank of Albany (28 N. Y. 655), it was held that in an action for conveyance of a promissory note, the measure of damages was the face amount, but defendant might show insolvency of the parties to lessen the damages. To the same effect are— Thayer v. Manley (73 N. Y. 307-8); Hynes v. Patterson (95 N. Y. 6). In Dowdney v. McCullom (59 N. Y. 367), the opinion of the court is to the same effect, and draws a clear distinction between cases like this at bar and the case of Pinney v. Gleason (5 Wend. 39 5), cited on behalf of the plaintiff.

This question of the measure of damages was not raised at the trial, or called to the attention of the trial judge. I think, however, that in the interest of justice it may still be considered by this court (Gossler v. Lissberger, 19 Week. Dig. 429 ; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 510).

For these reasons, I am of the opinion that the amount allowed by the jury was excessive, and that the judgment should be reversed, and that a new trial should be granted on payment by defendants of the costs and disbursements of the trial and of the appeal.

Sedgwick, Ch. J., and Truax, J., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CHARLES F. WILLIS, Appellant, v. JOSHUA C. SANDERS, Respondent.

      Decided March 2, 1885.

      Reformation of deeds—actions for—parties and evidence in—notice, when not constructive.

    An action for the reformation of a deed is not sustainable by one who does not, as matter of fact, connect himself with the arrangement, bargain or contract under which the deed was made ; and the mere fact that one is a grantee of the party to whom the deed was made, does not so connect him.
    When the solution of the question involved depends on inferences, surmises and speculations, rather than direct and positive evidence, and is not free from doubt and uncertainty, equity will withhold relief.
    The extent of the proposed alteration must be clearly defined and ascertained by evidence contemporaneous with or anterior to the deed.
    As against a purchaser for value and without notice, such relief will not be granted.
    Where one obtains a deed in fee from a party who has no record title, and, finding a person in occupation under a tax lease, takes a deed from such person, of whatever rights such person has (although from his standpoint such person had no title), that person in and by such deed attorning to the grantee thereof and hiring from him, the continued occupation of the one so holding under the tax lease is not constructive notice of the claims or rights claimed by the parties under the deed in fee.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from a judgment dismissing the complaint on the merits.
    In this case it was sought to reform a deed by substituting the word “west” for “east.” One McCormick on November 1, 1852, conveyed to one Orowley a piece of land, beginning two hundred and fifty feet west of Second avenue, and running fifty feet west, taking back a purchase-money mortgage. Ten days after, and on the 10th day of ¡November, 1852, the following transactions took place : McCormick canceled said mortgage, and conveyed to Crowley a piece of land beginning two hundred and fifty-five feet west of Second avenue, and running fifty feet east, Crowley giving back a mortgage which McCormick assigned; Crowley conveyed to McCormick two lots, beginning two hundred and fifty feet west of Second avenue, and running fifty feet east. (It is in this deed the mistake is alleged to have occurred.) McCormick conveyed to one O’Leary a lot, commencing two hundred and fifty-five feet west of Second avenue, and running twenty-five feet west, and O’Leary gave back a mortgage which McCormick assigned. Plaintiff claims through O’Leary. Defendant claims to be a bona fide purchaser without notice from the heirs of Crowley. Plaintiff claimed that the transactions of November 10, established an agreement between McCormick and Crowley, to the effect that Crowley should re-convey to McCormick the property conveyed by the deed of November 1, and that McCormick should convey to Crowley the east five-feet of that property, and forty-five feet of the land lying; contiguous thereto on the east, and that consequently the word “ east ” was inadvertently and by mutual mistake used instead of “west” in the deed of that date, from Crowley to McCormick, arguing that if this were not so the following results would follow: McCormick would convey to Crowley five feet of land which he already possessed, and Crowley by the deed in question would convey to McCormick five feet more that he (Crowley) possessed, and the mortgage given that day by Crowley to McCormick on the property that day conveyed by the latter to the former, would cover forty-five feet of that same property, which forty-five feet with five additional feet on the west, was on the same day conveyed by the former to the latter ; whereas, if it were so, those results would not follow, but on the contrary by Crowley’s deed of November 10, McCormick would become possessed of the original fifty feet conveyed by him to Crowley, and he would thereby be enabled to convey the easterly five of those fifty feet with forty-five additional feet on it east to Crowley, and Crowley would not convey anything more than he possessed, and the mortgage given by Crowley to McCormick would not be on any part of the land which he on the day of giving it conveyed to McCormick ; and that equity would give such a construction to the transactions as would lead to the latter, rather than such an one as would to the former, result.
    Plaintiff claimed that defendant at the time of taking his deed had constructive notice of his rights and took subject to them ; and founded this claim in the following circumstances : at the time plaintiff took title one Mary Murphy was in possession, and the agent of the plaintiff in the purchase testified :

      “ Mary Murphy occupied and claimed the property, and therefore, I thought it prudent to get a deed from her ; from my standpoint she had no title ; I had the deed of the property, from the owners, Browns, before that; the deed I introduced here in evidence ; Mary Murphy was in occupancy at that time, holding under a tax lease; the deed from her was for any claim she had under it, and a surrender of occupation, and an attornment to the plaintiff as the owner. ”
    The deed from Mary Murphy was read in evidence.
    The cause was tried at special term, before his Honor Judge O’Gorman, without a jury, who delivered the following opinion:
    O’G-orivian, J.—“ The plaintiff in this action claims to have acquired, for a valuable consideration, title to a lot of land on the north side of Seventy-seventh street, in this city, lying between Second avenue and Third avenue, and described as beginning at a point on the north side of Seventy-seventh street, two hundred and fifty-five feet from the northwest corner of Seventy-seventh street and Second avenue, and running thence along said street twenty-five feet west, by a deed dated June 1, 1883, from Delaplaine Brown to him, said Brown claiming title-through various intermediate conveyances from Daniel O’Leary, who acquired his title to said lot by deed, from one Richard 0. McCormick, dated November 10, 1852.
    “ The lot in question was part of a plot, of which said McCormick was then, or had been on the first day of November, 1852, the owner in fee.
    “The defendant Sanders claims to have acquired title for a valuable consideration to the same lot, by deed dated July 31, 1882, from the heirs-at-law of one Cornelius Crowley, to whom the lot was conveyed by deed from said McCormick, dated November 1, 1852, by which deed a plot of land commencing 250 feet west of the northwest line of Second avenue, being fifty feet front on Seventy-seventh street, lying west of the place of beginning, was conveyed to said Crowley, including the lot in question.
    “ The existence of these deeds from said McCormick is conceded by both the plaintiff and the defendant. The plaintiff, however, avers in his complaint, that it was on the tenth day of November, 1852, intended and agreed by and between said McCormick and said Crowley, that the said plot of land last mentioned should be reconveyed by said Crowley to said McCormick, but that by a “clerical error in the description ” thereof in a deed executed and delivered by said Crowley to said McCormick, on the day last mentioned, the said agreement and contract were not carried out, but property other than that agreed on by them was conveyed by said deed.
    “ If this allegation were sustained by proof, the plaintiff might be entitled to equitable relief by way pf reformation of said description or otherwise, so that the said mistake should be rectified, and the actual intention of said McCormick and Crowley should be expressed and carried out. Upon his success in sustaining this allegation by sufficient proof, the plaintiff’s claim of title to the lot in suit depends.
    “ The burden of proving that the agreement and intention of said Crowley and said McCormick were as he avers, rests upon the plaintiff, and if he fails in this, he is entitled to no relief, either legal or equitable, in this action, and his complaint must be dismissed.
    “On said 10th of November, Crowley conveyed to McCormick two lots commencing two hundred and fifty feet west of Second avenue, being fifty feet on Seventy-seventh street, and lying east of the place of beginning. The above averment is made in respect of this deed. Both McCormick and Crowley are long since dead, and no parol testimony is offered to show what was their mutual agreement or intention.
    “No charge is made against Crowley of fraudulent intent in the matter, but it is claimed that by a £ clerical mistake ’ the word £ east ’ was written instead of the word £ west,’ in the deed.
    “The defendant Sanders, claims to have purchased the lot in suit for value, and without notice of the alleged error in said deed or of said alleged agreement and intent.
    “ In order to prove the alleged mutual agreement and intention, that the two lots running west should have been reconveyed to McCormick and not the two lots east, the plaintiff presents the following facts which are in evidence : On execution of the first mentioned deed, dated November 1, 1852, by McCormick to Crowley, of the plot, including the lot in question, the latter gave the former a purchase money mortgage. This mortgage was satisfied of record on November 10, 1852. On said November 10, 1852, McCormick executed a deed to Crowley of two lots described as beginning at a point two hundred and fifty-five feet from said northwest corner of Seventy-seventh street and Second avenue and running thence easterly fifty feet along said street. These were other two lots of the said plot owned by said McCormick. On the same day, November. 10, 1852, Crowley gave to McCormick a mortgage, on said two easterly lots, for $500, and on the same day McCormick assigned said mortgage to one Daniel Fry, in trust for Margaret Hamilton.
    “ This action of McCormick, it may be argued, seems to ba inconsistent with the theory entertained by the defendant Sanders, that Crowley, by his deed of the same date, November 10, being the deed in which it is claimed by the plaintiff that the ‘ clerical mistake ’ occurred, intended to reconvey the same two easterly lots to McCormick ; and seems to be more in accord with the theory of the plaintiff, that the two lots intended to be reconveyed were the two lots on the westerly side which had been conveyed by McCormick to Crowley by deed dated November 1, 1852.

      “ The fact that on the same 10th day of November, 1852, McCormick conveyed to Daniel Leary, the lot in dispute in this suit, being described as commencing two hundred and fifty-five feet west of the said northeast corner of Second avenue and Seventy- seventh street, and running thence twenty-five feet west along said street, seems to be consistent with the theory that McCormick regarded himself then as having resumed ownership of said lot by the reconveyance to him of the before-mentioned plot, fifty feet wide, in which said lot was included.

      “ It is worthy of notice that the deed of reconveyance from Crowley to McCormick, of November 10, 1852, does not accurately describe the two lots conveyed by McCormick to Crowley on same day, in this, that in the latter deed the two lots are described as beginning at a point two hundred and fifty-five feet from said corner of Second avenue and Seventy- seventh street, and in the former deed, that is to say, the reconveyance from Crowley to McCormick, the lots are described as beginning at a point not two hundred and fifty-five feet, but two hundred and fifty feet from said corner, and running east along Seventy-seventh street fifty feet, which description would extend beyond the lots owned by McCormick on the east, by five feet. It thus appears that the deed of reconveyance is, in its description of the property conveyed, defective in any aspect of the case, and in its present shape would fail to express with perfect accuracy any probable intent of either of the parties, McCormick or Crowley.

      “Again, on the sale by McCormick to Daniel Leary, of the lot in dispute, on November 10, Leary gave McCormick a purchase-money mortgage for $250, which mortgage McCormick assigned to Daniel M. Frey, which facts also may he regarded as tending to show that at the date of that mortgage, McCormick regarded himself as the owner of the lot in dispute, and he could not have been owner of it unless it were included in the deed of reconveyance in which, as is alleged, by a “ clerical error,” the lot in dispute was not included.
    “ Again, why did McCormick, on November 10, satisfy a mortgage on the two westerly lots, conveying one of them (being the lot in dispute) to Leary, unless he believed himself entitled as owner of this to convey it to Leary ?
    “ These are the facts relied on in support of the theory that it was McCormick’s intent to re-acquire the ivesterly lots by means of a re-conveyance to him, and to sell one of them (the lot in dispute) to Leary, and to leave the other and easterly lots as they were, conveyed to and vested in Crowley under the deed to him of November 10. But whether they are considerations strong enough, of themselves, to sustain a conclusion on which a court of equity could safely decree that a deed should be reformed,* is a question by no means free from doubt.
    “ What were the motives and purposes of these various conveyances and re-conveyances, 'and especially what were the actual agreement and intent of the parties to the re-conveyance of November 10, 1852, in which the “ clerical error ” is said to have occurred, are questions depending in this case on inferences, surmises and speculations, ■rather than on any direct and positive evidence, and if there be not sufficient proof to guide a court of equity to a satisfactory conclusion as to the real intention of the parties, in compliance with which intention the alleged mistake in the deed could be rectified, the court will not decree that the deed be reformed.
    “ A court of equity will not undertake the responsibility of changing the language of a deed, unless there be no-reason to fear that such change might, instead of better expressing the real intention of the person executing the deed, be the means of misrepresenting and defeating that intent.
    “The deed of reconveyance here, of November 10, 1852, was duly recorded, and must be assumed to have reached the possession of McCormick and to have been read and understood by him.
    “He never took any measure to have it reformed, and until now—thirty-one years after the date of that re-conveyance—no such effort has been made by any one.
    “To reform a deed conveying real estate, after such a lapse of time, unless the proof that it failed to express the real intention of the person executing it was clear and beyond all reasonable doubt, would be to establish a dangerous precedent and tend to unsettle confidence in all title to real estate.
    “What has occurred since the death of McCormick and Crowley, what steps have been taken by the heirs of Crowley, and what claims have been made by them, throw no light on the question of the intent of the parties to the deed of reconveyance at the time of its execution, and it is essential to a decree reforming a deed, that the extent of the proposed alteration be clearly defined and ascertained by evidence contemporaneous with or anterior to the deed (Story’s Eq. Jur. § 164, d).
    “ The defendant Sanders, claims to be, and as far as appears in the case is, a purchaser for value, and without notice of any mistake in the said deed of reconveyance of the easterly lots, or any reason to’believe that it had any application or reference to the westerly lots conveyed to Crowley on November 1, 1852, including the lot in dis-. pute, or that Crowley’s title to the same was in any re-, spect affected by said deed of reconveyance.
    “ The plaintiff in his complaint concedes that as far as recorded deeds constitute a claim of title, the record title is in the defendant Sanders. And the mere occupation of the lot in question by Mrs. Murphy, without claim of title, does not, in my opinion, amount to notice of any adverse possession.
    “ The principles of law as applicable to a question of this kind, are these :
    “ Courts of equity will interfere to reform a deed only between the original parties and their privies' (Story’s JSJq. Jur. § 165). No such relief will be granted as against a purchaser for value and without notice, for he has equal equity to the protection of the court (Id. § 165).
    “The existence of the mistake in the deed, must be made out clearly and by satisfactory evidence, and if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief (Id. § 152). The proof must be full, clear and decisive, free from doubt or uncertainty. Such a degree of proof as a jury would act on in the most important affairs of life (Washburn Beal Prop. § 23 a ; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 317; Leavitt v. Palmer, 3 N. Y. 19 ; Nevius v. Dunlap, 33 lb. 676 ; Earniey v. McMullen, "5 Abb. N. C. 246 ; Pitcher v. Hennessy, 48 N. Y. 415 ; Bryce v. Lorillard Pire Insurance Co., 55 lb. 240 ; Maher v. Hibernia Ins. Co., 67 lb. 283).
    “Applying these principles to the case at bar, I am unable to arrive at the conclusion, clear of all reasonable doubt, from any evidence before me, that the intention of both McCormick and Crowley was not expressed in the reconveyance of November 10, 1852, of the easterly lots ; and that the real intention was to convey thereby the plot on the west, containing the lot in dispute ; and under such circumstances,- and as against the claim of a purchaser for value and without notice, this court should not, in my opinion, interfere.
    “The plaintiff’s complaint should therefore be dismissed on the merits, as against all the defendants, but without costs.
    “As to the prayer in answer of defendant Sanders for judgment, for damages, and for possession of the lot in question, that must be denied, without prejudice, however, to any action at law which he may bring to obtain such judgment or relief.
    Judgment having been entered in conformity with the opinion, plaintiff appealed.

      William Settle, attorney, and Benjamin A. Willis, of counsel for appellant,
    argued :—I. Sanders becomes, in virtue of the facts, mala fide purchaser, chargeable with notice, and is not at liberty to invoke the equitable principles referred to by the judge in Ms opmion. He took it with notice of all outstanding eqmties. Possession is a badge of ownership. All the proofs making evident the mistake of description m the deed from Crowley to McCormick were on the record. Sanders should have inquired of the Crowleys and also of the plaintiffs, whose lease to Mary Murphy was on record before he purchased. When another than the vendor is in possession of the land, the purchaser has constructive notice of his rights, and takes it subject to them (Pendleton v. Fay, 2 Paige, 202 ; Daniels v. Dawson, 16 Vesey, 249 ; 2 J. J. Marsh. 180; Brice v. Brice, 5 Barb. 553 ; Chesterman v. Gardner, 5 John. Ch. 29 ; Cook v. Travis, 20 N. Y. 402 ; Williamson v. Brown, 15 Ib. 354). Flagg v. Mann (2 Sumner, 554), holds that possession is notice. See also Reed v. Gannon (50 N. Y. 350); Scott v. Gallagher (14 Serg. & Rawl. 333). It follows also by reason of the adverse possession at the date of Sanders’ deed, that the same was absolutely void under the statute (Sands v. Hughes, 53 N. Y. 287), for Sanders, in his said answer, alleges that the premises are withheld from him by Willis, this appellant, and that WiHis holds under a claim of title.
    II. There never was a cause presented where the proof was so conclusive that the deed sought to be reformed, was contrary to -the intent and agreement of the parties, and that the word “east” was, by mutual mistake, used for “west.” The contemporaneous evidence shows this. The subsequent acts are equally strong and convincing.
    Never were more convincing proofs marshaled—none of the presumptions against the defendants were rebutted. Neither Sanders nor the Crowleys gave testimony, and no single word, act or record, antagonizes plaintiff’s theory. Sanders was bound to rebut (Bruce v. Kelly, 39 Super. Ct. 271). The extent to which courts administer relief, in reforming and correcting written instruments will be appreciated by reference to the following authorities : Brown v. Broadway Ins. Co. (16 N. Y. 273), in which the word “northwest” was changed to “southwest,” in policy of insurance; Huss v. Morris, 63 Penn. St. 367 ; Van Duyne v. Van Duyne, 23 Mich. 321 ; Hartford Ave. Co. v. Miller, 41 Conn. 112 ; Quincey v. Baker, 37 Col. 465 ; Johnson v. Tabor, 10 N. Y. 319 ; Hoppingh v. Struble, 60 Ib. 430 ; Foster v. Bell, Clarke Ch. 37. The long established rule is with reference to construction of a description, “that courts are required to adopt such an interpretation thereof, as shall give effect to the intention of the parties, if that is discoverable from legitimate sources of information (Jackson v. Clark, 7 John. 217; Buffalo R. R. Co. v. Stigles, 61 N. Y. 348). Attention is also called to case of Brookman v. Kurzman (94 N. Y. 272). See also Rider v. Powell, 28 N. Y. 311 ; Bartlett v. Judd, 21 Ib. 199; Jackson v. Andrews, 59 Ib. 245 ; Bush v. Hicks, 60 Ib. 303.
    III. The plaintiff is entitled to the relief asked for in his complaint, and the court erred in withholding it, for the reason that the acts, declarations and admissions of Cornelius Crowley, the grantor named in the deed to McCormick, of Thomas Crowley, of Cornelius George Crowley, the immediate grantor of Sanders, both those contemporaneous with the transaction and subsequent, operate as an estoppel in pais, and prevents them dr their privies from calling plaintiff’s title into question. He cannot gainsay the reasonable inference to be drawn from his words and conduct (Herman on Estoppels, 337, 239, 349).

      Townsend & Mahan, attorneys for respondent, and J. C. Sanders, respondent in person,
    argued :—I. Notice, to affect a purchaser, must be explicit and positive, equiva ■ lent to a registry, and “ such as will, with all the attending circumstances, affect the party wdth fraud,” if he disregards it. A notice which is to put a party on inquiry, is not sufficient to break in upon the policy and express provisions of the registry act. Nor is a mere suspicion of notice enough ; nor will vague reports and conversations warrant even the inference of notice (Jackson v. Van Valkenburg, 8 Cow. 264; Jackson v. Given, 8 Johns. 140 ; Jackson v. Wood, 12 Ib. 244 ; Jackson v. Elston, 12 Ib. 452). “ The notice, therefore, is never to be presumed, but must be proven, and proven conclusively. A mere suspicion of notice, even though it be a strong suspicion, will not suffice ” (Vest v. Michie, 31 Am. Rep. 722). But in this case the proof disclosed no record notice, no notice outside of the record, no suspicion of notice, and no suspicious circumstance. The defendant comes with clean hands, presenting a deed from the heir of Crowley, 0the record owner in fee ; and not one fact is given that he had, or ought to have had, any suspicion even, but that the title, which was conveyed to him, was, in fact, exactly as it appears of record—the absolute title—nor that there was any fact or circumstance suggesting any doubt upon the perfect validity of that title. Even if defendant’s grantor, Cornelius George Crowley, had notice of such mistake and intention, if there was one, and there is no proof that he had, that fact would in no way affect the title of Sanders, who had no such notice ; for “ where one affected with notice conveys to one without notice, the latter is protected equally as if no notice of error existed ” (Jackson v. Given, 8 Johns. 137 ; Jackson v. Van Valkenbug, 8 Cow. 260 ; Corning v. Murray, 3 Barb. 652 ; Varick v. Briggs, 6 Paige, 323). A deed describing property as beginning six hundred and fifty feet from a certain line, but recorded as beginning only one hundred and fifty feet therefrom, is not constructive notice to a bona fide purchaser who saw only, and was governed by, the record (Ford v. James, 2 Abb. Ct. App. 159 ; 4 Keyes, 300) Or, a mortgage for $3,000, but recorded by mistake as for only' $300, will render a bona fide purchaser chargeable with notice only to the extent of $300 (Beekman v. Frost, 18 Johns. 544). The occupation of the lot by Mary Murphy, without claim of title, as plaintiff’s counsel testifies she had no title, could not amount to notice of title or adverse possession; for possession is constructive notice only of the particular title or claim the possessor has ; and Mary Murphy having none, her occupation could not be notice of any titlé, for it was without title and wrongful. At the most, notice by possession is merely an inference (Cooke v. Travis, 22 Barb. 338).
    II. There is no evidence showing any error or mistake in the deed of Crowley to McCormick, dated November 10, 1852. The deed contains no intrinsic evidence of mistake. Every part is consistent with every other in the description, clearly and explicitly describing other property than that in question, and lying wholly east of it, and which plaintiff shows was conveyed to Crowley the same day.
    III. Allowing that there was error or mistake in the description of the deed from Crowley to McCormick, an action for its correction or reformation could only be maintained between the original parties thereto and their privies with notice thereof, and not against a purchaser in good faith, for he has an equal equity to the protection of the court (Story Eq. Jur. §§ 139, 165). But in' this case, after the lapse of thirty-one years, the plaintiff, holding no immediate relation to either party to the deed, asks for the first time the reformation of this ancient deed, and that it be made to describe property wholly different from that therein described, and that, too, against a bona fide purchaser for value. It is the height of presumption on the part of the plaintiff at this late day, after the lapse of nearly a third of a Century, to question the correctness of this deed, and to deny that the parties thereto, with whom he holds no immediate relation, and all of whom are dead, expressed what they intended therein.

      IV. To entitle a party to a decree of a court of equity, reforming a written instrument, he must show by clear, positive and unequivocal evidence, that (1) a mistake was made, and (2) that such mistake was a mutual one, expressing what was contrary to the intention of both parties. It is not enough to show that it was a mistake made by one party alone to the instrument. The court of equity forbids relief whenever the evidence is loose, equivocal or contradictory, or it is open to doubt or opposing presumptions (Story Eq. Jur. §§ 152, 157 ; Kent v. Manchester, 29 Barb. 597; Nevius v. Dunlap, 33 N. Y. 676).
    As remarked by the judge in his opinion, what were the motives and purposes of the various conveyances and reconveyances, by which the plaintiff has endeavored to show a mistake and the intent of the parties thereto, “are questions depending in this case on inferences, surmises and speculations, rather than on any direct and positive evidence.”
    V. When Daniel O’Leary, on the 10th day of November, 1852, received his deed from McCormick, he knew, and had legal notice, that the lot described in his deed had been ten days previously conveyed by McCormick to Thomas Crowley ; and the record of it six days before, constituted such notice. And the plaintiff, when he received his deed from Brown, had like knowledge and notice. Therefore, both deeds were void as against the deeds of the same lot to Crowley and to the defendant, under the registry act.
    VI. The possession of Mary Murphy, and acquired by plaintiff through her quit-claim, was not an adverse possession (Hoyt v. Dillon, 19 Barb. 644; Crary v. Goodman, 22 N. Y. 176 ; Hallas v. Bell, 53 Barb. 248 ; Hasbrouck v. Bunce, 62 N. Y. 482; Jackson v. Frost, 5 Cow. 351; Fish v. Fish, 39 Barb. 513 ; Sayre v. Rathbone, 9 Abb. N. S. 277).
   Per Curiam.

One McCormick, by two deeds, conveyed four lots to one Crowley. Crowley reconveyed to McCormick the two of the lots on the east, which left the title to the westerly lots in Crowley. On the same day, McCormick, conveyed to one O’Leary, one of the westerly lots, and the plaintiff holds through mesne conveyances and proceedings from. O’Leary, and also claims to be in possession of the lot. The defendant claims title from Crowley, through conveyances by his heirs. The plaintiff claims solely in this action that the deed from Crowley to McCormick apparently conveying the easterly lots, should be so reformed, as to make it a conveyance of the westerly lots. The plaintiff cannot show that he has any interest in the conveyance of Crowley to McCormick of the two easterly lots, unless as matter of fact, he connects himself with the arrangement, bargain or contract,- under which the deed was made. There is not a jot of evidence that he is a privy to that arrangement or succeeds to any interest in it. He is not privy to the deed which is asked to be reformed, and would become so only after there was a judgment that the deed should be reformed. He is,-however, not entitled to such a judgment until he first shows that he is privy to the obligations which led to the making of the deed or to the deed.

The judgment should be affirmed on the opinion of Judge O’Gorman, at special term, with costs.


text:
    JAMES M. SEYMOUR, Respondent, v. PIERRE LORILLARD, Appellant.

      Decided March 2, 1885.

      Causes of action—separate and distinct—Pleading—election between.

    A cause of action upon a warranty as to an article, and a cause of action for a false representation in respect of such article, as to matters covered by the warranty, are separate and distinct causes of action.
    A complaint combining the two causes of action is not obnoxious to the objection of stating the same cause of action in two forms, although but one sum of money under the allegations of the complaint can be recovered under either cause of action or both.
    Where the court has the power to compel election between two causes of action in a complaint, its exorcise rests in its discretion.
    As affecting the exercise of the discretion, one consideration is whether or not the prosecution of both causes of action at one time, and in one proceeding, will embarrass the defendant in his defense, when no such consequence would follow, and no embarrassment to plaintiff’s legal remedy would happen if he were obliged to bring two actions.
    In this case, as the only harm which could come to the defendant from combining the above two causes, would arise from the plaintiff’s endeavoring to show that the defendant was guilty of a fraud as well as of a breach of contract, and thus give the jurors an unfavorable impression which might affect their verdict, and as practically all the facts would be in evidence under either cause of action,—Held, that a motion to compel an election was properly denied.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendant from an order denying his motion that plaintiff be compelled to elect one of two causes of action alleged in the complaint.
    The first cause of action was for damages from false representations ; viz., that a certain yacht then offered for sale by defendant to plaintiff did not leak and was sound and in perfect condition.
    The second cause of action was for damages from0 a breach of a warranty upon the sale of the yacht; viz., defendant falsely warranted said yacht not to leak, and to be sound and in perfect condition.

      John E. Parsons, attorney and of counsel for appellant,
    argued : I. The plaintiff cannot in his complaint insert allegations sufficient to sustain a cause of action in either tort or contract; and the remedy of the defendant is by motion (Ladd v. Arkell, 37 Super. Ct. 35 ; Conaughty v. Nichols, 42 N. Y. 83).
    II. No case can be cited contradictory to these decisions, The court is asked to overrule them upon cases which presented an entirely different question, viz : Kelly v. Bernheimer, 3 T. & C. 140; Bowen v. Mandeville, 95 N. Y. 237.
    III. That causes of action which proceed, one for tort and another for contract, are inconsistent in the sense in which that term is used in defining causes of action, is not an open question (Sweet v. Ingerson, 12 How. Pr. 331, which is an adjudged case in point with the one at bar Quintard v. Newton, 5 Rob. 72; Comstock v. Hoeld, 1 Law Bull. 43, Barrett, J. ; Anderson v. Hill, 53 Barb. 238; Hepburn v. Babcock, Super. Ct. 9 Abb. 159 ; Nash v. Macauley, Ib. 159).
    IV. The complaint describes the two counts as two causes of action. As has been said, this is a misnomer. There is but one cause of action. It is to recover fifty thousand dollars which the plaintiff alleges he has lost because the Badha leaked. He has framed his complaint for this fifty thousand dollars in the shape of two counts. This is wholly different from a case where two recoveries can be had, where the jury might decide one cause of action in favor of the plaintiff and the other in favor of the defendant.
    Several of the cases above referred to were precisely similar in character, a single sum of money being demanded upon .two different counts, one alleging fraud and the other warranty. The plaintiff has the right to elect upon which ground he will attempt to recover his fifty thousand dollars. If he selects his fraud count, the allegation of a warranty is irrelevant; if his warranty count, he cannot be permitted to sustain it by proof of fraud.

      Roger A. Pryor, attorney, and of counsel for respondent,
    argued :—I. If the vice intended to be imputed to the complaint be, that it improperly unites causes of action, the objection is not available on motion, but must be raised by demurrer for the misjoinder (Code, § 488, subd. 7 ; Smith v. Orser, 43 Barb. 187 ; Quintard v. Newton, 5 Robt. 62 ; Smith v. Douglas, 15 Abb. 266 ; Blossom v. Barrett, 37 N. Y. 436 ; Goldsberg v. Utley, 60 Ib. 427 ; Gillet v. Borden, 6 Lans. 32 ; Pomeroy on Remedies, § 448).
    II. Under this division the counsel discussed the question of a misjoinder of causes of action ; and cited as bearing on it: Code, § 484, subd. 9 ; Pomeroy, § 463 ; Robinson v. Flint, 7 Abb. 392 ; Lee v. Partridge, 2 Duer, 463 ; Adams v. Bissell, 28 Barb. 382 ; Badger v. Benedict, 1 Hilt, 414 ; Flinn v. Bailey, 50 Barb. 73 ; Christy v. Libby, 2 Daly, 418 ; Lattin v. McCarty, 41 N. Y. 107, 112 ; Wiles v. Suydam, 64 Ib. 173 ; Simar v. Canady, 53 Io. 298, 305 ; Robinson v. Flint, 16 How. 240; Woodbury v. Deloss, 65 Barb. 502 ; Sternberger v. McGovern, 15 Abb. N. S. 257 ; McTeague v. Coulter, 6 J. & S. 212 ; Keep v. Kaufman, 6 Ib. 141; Kelly v. Bernheimer, 3 T. & C. 142 ; Robinson v. v. Flint, 7 Abb. 392, note ; Woodbury v. Deloss, 1 T. & C. 20 ; Bowen v. Mandeville, 95 N. Y. 237 ; Goldberg v. Dougherty, 7 J. & S. 190 ; Wanzer v. De Baun, 1 E. D. S. 261 ; Bowen v. Mandeville, 95 N. Y. 237, 240; Whitney v. Allaire, 1 N. Y. 305 ; Schuchart v. Allens, 1 Wall. (U. S.) 359 ; Bartholomew v. Bushnell, 52 Am. Dec. 368, and note; Jones v. Hoyt, 10 Abb. N. C. 324.
    In respect to Quintard v. Newton (5 Robt. 78), of course, if the count for fraud proceeded upon the ground of a rescission of a sale, and sought to reclaim the entire purchase price, as was erroneously assumed by the court in that case, it would be inconsistent with the count upon the warranty, which affirms the sale. But otherwise where the action is for damages merely (Ely v. Mumford, 47 Barb. 629 ; Bowen v. Mandeville, 95 N. Y. 237 ; Krumm v. Beach, 96 Ib. 398, 406).
    As to Sweet v. Ingerson (12 How. 331), though the authority of that case was recognized in Springstead v. Lawson (23 How. 302), with a protest, however, that the ruling was against the spirit of the Code (p. 305), and in Quintard v. Newton (5 Robt. 72), neither of which, however, was an adjudication of the point; it was distinctly rejected in Robinson v. Flint (7 Abb. 393), and Kelly v. Bernheimer (3 T. & C. 142), and decisively overthrown by the court of appeals in Bowen v. Mandeville (95 N. Y. 237), Reynolds v. Palmer (21 Fed. R. 433).
    So, a count for malicious prosecution may be united with a count for false imprisonment, if they both arise -out of the same transaction, and this, despite the seeming incompatibility of the causes of action (Castro v. Uriarte, 2 Civ. Pro. 199 ; Barr v. Shaw, 10 Hun, 580 ; Thorne v. Turck, 10 Week. Dig. 560 ; Neil v. Thorn, 88 N. Y. 270; Henderson v. Jackson, 2 Sweeny, 224, affirmed by the court of appeals ; Polley v. Wilkinson, 5 Civ. Pro. 135).
    As to Ladd v. Arkell (5 J. & S. 35), following Conaughty v. Nichols (42 N. Y. 83),. it did not touch the point in controversy, but merely suggests that remedy, if any, is by motion, when the complaint purports to state a single cause of action, but is susceptible of an alternative construction. Neither case intimates that here is a misjoinder of causes of action. ' So, in Gardner v. Locke (2 Civ. Pro. 252), and in Hepburn v. Babcock (9 Abb. 159, note), were two statements of the same cause of action. This court, however, propounded a contrary rule in Evans v. Kalbfleisch (10 Abb. N. S. 13).
    Sullivan v. R. R. Co. (1 Civ. Pro. 289), and Teall v. Syracuse (32 Hun, 332), are plainly distinguishable.
    III. The causes of action being properly united, the court will not compel an election between them, nor strike out either (Jordan v. Reilly, 12 Week. Dig. 184 ; Hazewell v. Cameron, 13 J. & S. 22 ; Smith v. Douglas, 15 Abb. 266). Nor, indeed, has the court power to deprive the party of a privilege expressly accorded him by statute (Cases, supra; Bryant v. Bryant, 2 Robt. 616 ; Smith v. Wells, 20 How. 158 ; Townsend v. Platt, 3 Abb. 325).

      IV. The remedy sought by the present motion, to compel an election or to strike out, is applicable only when the same cause of action is repeated in another independent count (Hepburn v. Babcock, 9 Abb. 159, note ; Nash v. McCauley, Ib. 151; Fern v. Vanderbilt, 13 Ib. 72); the remedy for consolidating two repugnant claims in a single count being by demurrer (Wiles v. Suydam, 64 N. Y. 173 ; Goldberg v. Utley, 60 Ib. 427; Harris v. Eldridge, 5 Abb. N. C. 278).
    But here is no restatement of a single claim, but allegations, in substance as well as form, of distinct and substantive causes of action (Cases, supra; Bowen v. Mandeville, 95 N. Y. 241).
    V. If, however, the second count were but a varied repetition of the cause of action stated in the first, the court would not strike out or compel an election (Barr v. Shaw, 10 Hun, 580 ; Velie v. Ins. Co., 65 How. 1; Longprey v. Yates, 31 Hun, 432 ; Birdseye v. Smith, 32 Barb. 217, 221; Talcott v. Van Vechten, 65 How. 5 ; 25 Hun, 565 ; Jones v. Palmer, 1 Abb. 442; Sheldon v. Adams, 41 Barb. 54).
    VI. Neither an entire pleading—and each statement of a several cause of action is an independent pleading (Simmons v. Fairchild, 42 Barb. 409)—nor an allegation relevant to a statement of a cause of action, will be stricken out (Eaton v. Burnett, 16 J. & S. 548 ; Collins v. Coghill, 7 Robt. 81; Fasnacht v. Stehr, 5 Abb. N. S. 338; Howell v. Ins. Co., 24 How. 475 ; Quintard v. Newton, 5 Robt. 72 ; Walter v. Fowler, 85 N. Y. 621; Donan v. Dinsmore, 33 Barb. 86).
    . VII. The injustice of which appellant supposes he may be the victim, by being arrested for the fraud of which he may be acquitted on the trial, is purely imaginary; because the joinder of the claim upon contract with the action for deceit precludes plaintiff from an order of arrest (Mudge v. Ping, 71 N. Y. 608 ; Bowen v. True, 53 Ib. 640).
   Per Curiam.

Whether a party should be compelled to elect to proceed upon one of two causes of action stated in the complaint, rests in the discretion of the court, in a case where the court has a power to compel an election. If in this case, the plaintiff has not improperly joined two causes of action, so that the complaint is not demurrable, the merits of both may he definitely determined in this action. If the complaint be demurrable, defendant should go at once to the specific remedy pointed out by the Code ; or again, if he do not demur, the issues upon the whole of the complaint may be tried, reserving an opinion, however, as to the power of the judge at the trial to compel an election based upon the appearance then of facts which cannot now be perceived from the pleadings only.

This is not an instance of an endeavor to state the same cause of action in two forms. There are two causes of action that are not inconsistent. It is conceivable that if separate actions upon the causes were brought that there might be a recovery in each, of the whole amount claimed in this, unless there was a judgment on one cause recovered and paid, before the judgment was recovered on the other cause. It does not seem expedient to put the proceedings in shape for the possibility of such a question, unless that may be the consequence of the defendant demanding a strict legal right which is not this case. The fact, if it be a fact, that the plaintiff can recover according to the allegations of the complaint, but one sum of money under either cause of action or under both, does not and should not deprive the plaintiff of both methods of attaining his rights. If he have a right to both remedies, he cannot be forced not to use them. And the question is, whether in the plaintiff’s using both at one time, or in one proceeding, he will embarrass the defendant in his defense to either or to both, when no such consequence would follow and no embarrassment of plaintiff’s legal remedy would happen, if he were obliged to bring two actions. The only way in which the defendant could be harmed, if at all, would arise from the plaintiff endeavoring to show that the defendant was guilty of a fraud as well as of breach of contract, and thus the jurors receive an unfavorable impression which might affect their verdict. There is a practical force in this, generally considered In the present case it has less force than it would have if the facts on which the plaintiff must rely were not under both causes the same, to a great extent. Practically, all the facts would be in evidence under either cause of action.

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


text:
    BENJAMIN A. WILLIS, Appellant, v. HORACE J. FAIRCHILD, et al., Trustees, &c., Respondents.

      Adjudication—effect on question of ownership of claim sued on — how avoided.—Foreclosure sale — setting aside of.—Demurrer — questions raised by.

    A judgment in plaintiff’s favor is, as between the parties, conclusive as to the plaintiff’s ownership of the claim or instrument recovered on. Thus if one as executor, brings an action to foreclose a mortgage given to his testator, a judgment in his favor is conclusive between the parties, of his title to and ownership of the mortgage as such executor.
    Such effect cannot be avoided, in an independent action on the bare ground that plaintiff did not hold as executor, but as trustee. Consequently an action in equity, founded on such ground, to have such judgment declared void, and in the mortgage case above put, for leave to redeem, cannot be sustained.
    Allegations that although certain persons held and owned the mortgage as trustees under a will, yet they, as executors of that will were the plaintiffs in the foreclosure action ; that although the premises were struck off to the plaintiffs in the action, yet the deed without any transfer of the bid, was made to the individuals composing the plaintiffs as trustees; that the plaintiffs entered a judgment of deficiency which they still held; that the trustees claim to hold the property absolutely as owners ; that at the sale the premises were bid off for less than half their value; that there was no competition; and that the time for the sale was thoroughly inopportune—are insufficient to justify a court of equity in setting aside such foreclosure sale, although urged in behalf of the owner of the equity who was also the mortgagor against whom the deficiency judgment was entered.

      Decided March 2, 1885.
    A demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, only raises the question whether or not plaintiff is, under the allegations of the complaint, entitled to the judgment demanded ; not whether those allegations entitle him to some other relief.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from judgment dismissing the complaint, entered on demurrer.
    The complaint was as follows :
    “I. That on the 26th day of September, 1876, said plaintiff, being the owner in fee of all that certain lot, etc.' . . . executed and delivered to the said Horace J. Fairchild and Alvah Miller, Junior, as executors of the last will and testament of Nathaniel F. Miller, deceased, a purchase money mortgage, to secure the payment of a part of the consideration expressed in a deed from them to this plaintiff ... of the premises hereinbefore described. H. That on or about the 2d day of July, A. D. 1877, the said Horace J. Fairchild and Alvah Miller, Junior, as executors of the last will and testament of Nathaniel F. Miller, deceased, assigned, transferred and set over said mortgage unto Alvah Miller, Junior, and Horace J. Fairchild, as trustees under the last will and testament of Nathaniel F. Miller, deceased, by an instrument under seal, and subscribed and acknowledged by them in due form of law. III. That subsequently, to wit, on the 19th day of March, 1878, the said Horace J. Fairchild and Alvah Miller, Junior, as executors of the last will and testament of Nathaniel F. Miller, deceased, commenced an action to foreclose said mortgage, and such proceedings were had, that in form a decree of f orclosure and sale was had, and the premises hereinbefore described struck off to the plaintiffs in said foreclosure action, although the deed, without any transfer of bid, was made out in the names of and delivered to Horace J. Fair-child and Alvah Miller, Junior, as trustees, as aforesaid. IV. That subsequently, to wit, on or about the 10th day of October, 1878, the plaintiffs in said f oréelos are proceeding, although they had long before ceased to be the owners of said mortgage and the bond accompanying the same, and at the date of said sale, had no interest therein, procured to he entered against this plaintiff a judgment, for deficiency in the sum of eleven thousand six hundred and seventy-four dollars and forty-eight cents, which said judgment is a wrongful claim against this plaintiff, a lien upon his real estate, and the cause of annoyance and embarrassment to him. V. That at the pretended sale of the said premises, the same were bid off at a sum for less than one-half their value; that there was no competition, and that the time for a sale was thoroughly inopportune, so that even were the sale valid, it still would be grossly unfair. VI. That since the defendants received the deed of said property in manner and under the circumstances as aforesaid, they have insisted that the title thereto vested in them absolutely ; that all plaintiff’s rights are extinguished and that said deficiency judgment against him is in full force ; that said defendants have treated said property as their own, have paid taxes and assessments thereon, and have appeared in legal proceedings wherein the title to said property is involved, claiming the same as owners. VII. That this plaintiff is and has been ready and willing to pay the said mortgage, and the interest which has •lawfully accrued thereon, also to repay to the said defendants all moneys advanced by them for taxes and assessments upon said premises, upon receiving the cancellation and satisfaction of said mortgage, but that the said defendants refused to permit plaintiff so to do, although frequently requested so to do, and this plaintiff now hereby makes such tender to said defendants.
    “Wherefore, this plaintiff demands judgment adjudging and decreeing the said forclosure proceedings void ; directing the defendants Horace J. Fairchild and Alvah Miller, Junior, as trustees, as aforesaid, to convey the said described property to this plaintiff by a sufficient deed thereof, containing a covenant against grantors ; that the clerk of the city and county of New York cancel said judgment for a deficiency against this plaintiff upon the record in his office, and that this plaintiff have leave to redeem the said mortgaged premises upon payment to the owner of said mortgage whatever gum may be found due thereon, and that this plaintiff have such other and further relief as by reason of the premises he may in equity and good conscience be entitled to.”
    The complaint ivas demurred to on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, the judge at special term holding “The complaint fails to set forth a sufficient equity.”

      William Settle, attorney, and Benjamin A. Willis, of counsel for appellant,
    argued :—I. Even if a former recovery appears, it would not defeat the cause of action, because a proferí only of the record, would show what had been or might have been adjudicated. The complaint alleges the parties are different. The defendant, to avail himself of the plea, should set it up in an answer, and then the plaintiff could, if in his power, put in evidence to rebut the plea. It is essential, in order to present the question of res adjudícala, that the identity of the causes of action in the different suits should, in some form, be averred in the answer (3 Chitty Pl. 928-9; Phillips v. Benck, 16 Johns. 137 ; Secor v. Sturges, 16 N. Y. 548). Questions respecting the character and effect of a judgment can be determined only by reference to its contents ; had it been offered at a trial it might be explained or modified, or its character made plain by parol testimony. In Phillips v. Benck (supra), it was held that a record is prima facie evidence only, and the plaintiff may repel it (Snyder v. Croy, 2 Johns. 229; Sedden v. Tutop, 6 Term R. 607). Evidence that establishes a fact, prima facie, may be overthrown by proof that the presumption which the law raises is not consistent with the truth.
    II. An executor and trustee have duties that are essentially distinctive and are subject to liabilities wholly different. This difference exists between executors and trustees, although they are the same persons, vested, it may be, with both functions, in regard to the same estate, and even at the same time (Redfield Surrogates, 220, 424, and cases there cited ; Craig v. Craig, 3 Barb. Ch. 76 ; Matter Wordsworth, 2 Ib. 381; Quackenbush v. Southwick, 41 N. Y. 117; Wood v. Brown, 34 Ib. 337 ; Ridgly v. Johnson, 527; Layton v. Davidson, 95 Ib. 263).
    III. It follows from the foregoing authorities that the trustees above named had power to foreclose ; that the duties of the executors, by direction or provision of the will, were extinguished, and therefore the judgment of foreclosure and all proceedings thereunder, are void ; that the plaintiff’s relation to the mortgage is just the same, and his right to redeem just as absolute as though no foreclosure had ever been attempted, a. A judgment to be valid ought to be given between persons capable of being parties in a judicial proceeding, otherwise judgments founded thereon are void (Pothier on Obligations, vol. 1, 579). b. A judgment is null, obtained by a party who has sued on behalf of another, without being entitled so to do (Pothier, vol. 1, 580, 581). Certainly, in the case at bar, the persons holding the mortgage as trustees, after their powers as executors had ceased, and their office as such had been extinguished, had no power to bring an action as executors to foreclose it. It is a rule of both the civil and the common law, that a party acting in a certain right can be neither benefited nor injured by a judgment for or against him, when acting in some other right (Freeman Judgm. § 156, and cases there cited, also notes). Again, a verdict against a person suing in one capacity will not estop him when he sues in another distinct capacity, and in fact is a different person in law (Robinson’s Case, 5 Rep. 32; Dutchess of Kingston, 2 Smith’s L. C. 589 ;
      Comyn’s Dig. Estoppel C. ; Rathbone v. Homey, 58 N. Y. 463 ; Jackson v. Mills, 13 John. 463 ; Sinclair v. Jackson, 8 Cow. 565). Again, no one can take any benefit under a verdict who would not have been prejudiced by it, had it gone the other way. Parties must be mutually bound (Freeman Judgm. § 159). The following cases illustrate the view just taken : Eshelman v. Sherman, 13 Pa. St. 561; 1 Pothier, 581. It should be observed by the court, that the complaint alleges directly the executors, plaintiffs in foreclosure, were not owners of the mortgage at the time they brought the foreclosure suit. Nothing in the complaint indicates what the terms of the will are, what its conditions are, who the cestui qui trusts of the executors are, or who the cestui qui trusts of the trustees are. As executors they might act for the benefit of one party ; as trustees for the benefit of other parties. So, even supposing defendant’s points might prove well taken on trial after plaintiff’s case was all in, they certainly cannot be held good on demurrer upon bare inspection of complaint.
    IV. The defendant's proposition is predicated wholly upon the class of cases of which Ducker v. Rapp (67 N. Y. 464), is a type. That case is wholly unlike the one at bar, and in no wise helps the defendant’s demurrer. It simply holds that a stipulation made in certain other cases, brought by the plaintiffs as executors instead of trustees, which resulted to the advantage of the rightful cestui qui trusts, could be enforced despite the plea of the trustees, that they brought such action in a mistaken capacity. To decide otherwise would have been to encourage turpitude •—to repudiate the maxim “that no one can take advantage of his own wrong.”

      Coudert Brothers, attorneys, and F. R. Coudert, of counsel for respondent.
    I. A judgment duly rendered is conclusive upon the parties, not only as to the matters act-. ually adjudicated, but as to all matters wdiich might have been adjudicated therein, or which it was necessary to decide, and of every fact essential to the adjudication. (Le Guen v. Gouverneur, and cases cited in note [a] 1 Johns. Cas. 492 ; Hayes v. Reese, 34 Barb. 156 ; Embury v. Connor, 3 N. Y. 522 ; Tuska v. O’Brien, 68 Ib. 448, 449, and cases cited; Glacius v. Fogel, 88 Ib. 441, and cases cited). If the plaintiff herein did not set up the alleged defect of parties in the foreclosure suit, he had an opportunity to do so ; and must now be held to the legal effect of the judgment therein rendered (Code, § 488-498, 499, 522).
    II. It sufficiently appears upon the face of the complaint herein, that these defendants were both executors of, and trustees under, Miller’s will. Under the alleged assignment of the mortgage there was, and could have been, no actual change of possession. The same individuals were invested with different official functions ; but whether they named themselves executors or trustees, the object to be attained was the same, and the result of their action was the same. All the parties interested in the subject matter were before the court in the foreclosure suit; the court had jurisdiction ; its judgment directing the sale of the mortgaged property and payment of the mortgage debt by the person who justly owed it cannot now be impeached or called in question (Gerwig v. Sitterly, 56 N. Y. 217 ; Ducker v. Rapp, 67 N. Y. 470).
    III. The allegations of fifth and seventh paragraphs of the complaint do not constitute or tend to constitute a cause of action (Tuthill v. Morris, 81 N. Y. 100 , Code, § 732).
   Per Curiam.

The action is to set aside, a judgment of foreclosure of a mortgage made by the plaintiff upon land then belonging to him, and to allow the plaintiff to redeem, on payment of the principal and interest of the mortgage and of other proper charges. The alleged ground of the action is, that the mortgage was made to the present defendants as executors ; that they assigned it to themselves as trustees, and that nevertheless, they, as executors, began the action of foreclosure, and procured judgment in it. The conclusion assumed to come from these facts is, that the defendants having no interest in the mortgage, the same has never been extinguished. The complaint shows that the plaintiff was a party to the foreclosure action. He is therefore bound by the adjudication that the defendants, as executors, were the real parties in interest, or in other words, the owners of the mortgage. If the defendants were to bring another action on the bond or mortgage as trustees, they would be equally estopped, because as trustees or executors, they represented the same interest. As executors, they had a duty or trust to assign the mortgage to the trustees. This duty as executors concerned the same persons as did their trust as trustees. The same considerations pertain to the judgment of deficiency obtained against the plaintiff. Of this, it must be said, that if the plaintiff’s main proposition be correct, then, as to this, he should have sued the defendants as executors. There is no allegation that this judgment for deficiency was transferred to the defendants as trustees.

The complaint does not make a case for setting aside the sale in the foreclosure proceedings specifically. If it did, as judgment to that effect is not demanded in the complaint, the complaint could not be sustained in this respect on demurrer. The demurrer raises the question as to whether the plaintiff is entitled to the judgment demanded; for there being no answer, the plaintiff could by law have no other judgment than the one demanded (Code Civil Procedure, § 1207).

Judgment affirmed, with costs.


text:
    THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Respondent, v. CORNELIUS VAN COTT, et al., as Commissioners of the Fire Department, and the Fire Department, &c., Appellants.

      Decided March 2, 1885.

      Gity property—Departments, rights of as to occupancy.—Where one department of the city government has, with the consent of the proper city authorities, occupied a part of its real estate, and finding it had no further use for it, permitted another department to enter and occupy, and such other department did enter, made alterations to suit its requirements, and continued in occupation for a number of years, presumably with the consent of the city authorities, the former department cannot re-enter into its occupation without the consent of such other department. “ Lately in custody ”—Definition of as used in article 10, ch. 337, Laws 1870.—Where a piece of real estate had been for several years in the custody of one independent department, that period cannot be skipped over so as to refer the word lately to a prior occupancy by another independent department. This, though the former department came into actual custody through the permission of the latter one.
    Before Sedgwick, Ch. J., Tritax and O’Gorman, JJ.
    Appeal from an order continuing an injunction.
    At some time prior to the year 1865, the city authorities acquired the building, No. 128 Worth street. It was thereafter, with permission of the city, used and occupied by the volunteer fire department. By chapter 249 of the laws of 1865, the volunteer department was abolished, and the metropolitan fire department was established in its stead. Section 17 of this act directed that all property then in use by the fire department be turned over to the metropolitan fire department, and in pursuance of this requirement the building in question passed to the new department. Sometime about February, 1867, this building went into the hands of the health board, with the consent of the fire department, and the health department continued to use and occupied until it was rented by the fire department as hereafter set forth.. The metropolitan fire department was abolished, and a new department created, by chapter 137 of the laws of 1870, the 10th article of which provided “The said fire department is hereby empowered . . . . upon due organization as a department, to take possession of, for its use, all city property and apparatus and books then or lately in custody of the metropolitan fire department,” which was continued by chapter 335 of the laws of 1873. In March, 1884, the fire department, finding need for this building in its service, requested the health department to surrender its possession. This was refused. Thereupon the appellants took possession of the building on May 30, 1884.
    Upon this, respondents commenced an action to restrain the defendants, and obtained an order to show cause why an injunction pendente lite should not be made.
    The motion for the injunction came on before His Honor Judge Van Vorst, at special term, who after hearing argument delivered the following opinion :
    Van Vorst, J.—“The defendants, even if they had the unquestioned right to the occupancy of the building in question, selected an unfortunate season for asserting it, and can scarcely be justified in the means they adopted for getting into possession. Their entrance seems to have been accompanied by force. Ho department of the public service can be sustained in ousting in this way another department in the possession of property which is owned by the city, and which is in actual use in the public service and interest.
    “ The building in question many years ago was in the occupation of the fire department, but it is city property. In 1867, the health department entered into possession, and has ever since occupied it, using it for their ambulances, as a depository for chemicals and other remedies for disinfecting purposes. The basement is in use for stabling the horses which the department needs, and the other part for the accommodation of their servants and employees. The whole building is occupied, and that necessarily, for the needs of this department. The defendants allege that they loaned the building in 1867 to the health department. Their right to loan a public building which they did not need at the time, may well be questioned. If the building was not required for their then use, it should have been surrendered to the city authorities to the end that it might be applied to proper public purposes.
    “ What ought to have been done must be considered to have been done, and that the use by the plaintiff for fourteen years of the premises, has been with the consent of the city. In this view, the health department cannot be, in effect, forcibly ejected from the building by the defendant department. This is a season of the year when the operations of the health department should not be arrested, and when, in fact, its best efforts are to be put forth to maintain the sanitary condition of the city. The city authorities should, in the end, determine which department should occupy the buildings, and should supply the requisite accommodations to both.

      “ Conceding all that is urged by Mr. Findley, the counsel for the fire department, as to the needs of the fire department for additional accommodation for its coal wagons and hose, no good end is attained by turning into the street the ambulances, horses and supplies of the health department, and hindering it from continuing its operations when so greatly needed. Since the health department has been in possession, the building has, by alterations, been adjusted to its needs. The injunction granted by Judge O’Gorman must therefore be continued until the hearing. With respect to the application to punish for contempt the same is denied.”
    From the order entered in conformity with the opinion the defendants appealed.

      William L. Findley, attorney, and of counsel for appellants.

      William P. Prentice, attorney, and of counsel for respondent.
   Per Curiam.

At the time of the passage of chapter 410, Laws of 1882, the real estate in question was not in use by the fire department of the city, which the act abolished. It had ceased, or rather one of its predecessors had ceased to use the building. At the passage of chapter 137, of Laws of 1870, § 84, the metropolitan fire department had not had lately the custody of the building; for in 1867 that department had transferred the custody to the plaintiffs. The plaintiffs had no power to hold under the then fire department. The fire department could not have a custody through the plaintiffs, that acted as an independent body under the law. The legislature and the city corporation knew what department had actual use, actual custody at the time the acts were passed. On the facts, the plaintiffs were in use and in custody by the recognition of the city before any point of time, that could be deemed to be lately, as to use or custody by the fire department.

The order is affirmed, with $10 costs, and disbursements to be taxed, upon the opinion of the judge at special term.