author: By the Court—Woodruff, J. Hoffman, J.

text:
    Peter P. Van Zandt et al., Plaintiffs, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendants.
    1. Before the Montgomerie Charter of 1730, the Corporation of the City of New York did not own and could not grant land under water on the East river, below low-water mark; and although, by that charter, they became owners of land under water, extending four hundred feet below low-water mark, their previous grantee of land upon the shore, with the right to build a wharf thereon, did not acquire thereby a pre-emptive right to a grant of the land under water, in front of such wharf
    2. The Corporation in 1692 granted land, bounded on the East river, with the usual covenants, and with a provision that the grantee should make and maintain a wharf, along low-water mark, to be a public street, and with a further covenant that if he performed this condition, he and his heirs and assigns should have and enjoy all the profits, &c., of the wharf. Held, that the right of the grantee to the wharfage lay in grant and not in covenant merely, and was part of the subject granted, and passed with the fee of the land.
    3. The Corporation having subsequently, become the owner ofj and having leased the land in front of their grantee’s wharf, to a third person, giving him permission to fill in the same and enjoy the wharfage upon the new front thus made, which he accordingly did; — Held, that the claim for damages which vested in the grantee by the destruction of his wharf, was a mere chose in action, and on his death passed to his personal representatives, not to his heirs and devisees; and that any recovery thereon would be for the entire damages for the whole injury, and successive actions could not be brought, as in the case of continuing trespasses.
    4. A grant of a definite piece of ground to be filled or built upon as a wharf, with all the profits derivable therefrom, however it may entitle the grantee to prevent an obstruction to its use as a wharf or to have damages for such an obstruction, gives no right to claim wharfage from another wharf subsequently built in front, nor does such an obstruction alter or enlarge the definite boundaries of the grant.
    5. Under a complaint claiming title to land, and demanding a judgment establishing it and directing a conveyance from the defendants, the plaintiffs cannot recover damages on proving merely a breach of a covenant as to adjacent premises.
    G. A vote of the common council of a municipal corporation that they will grant a petition for a conveyance of land, upon condition that the proposed grantee should release certain claims, followed by Ms giving notice to them of his willingness to do so; if it be assumed to amount to a contract binding on the corporation, will not, in case of a breach, sustain an action for damages by the heirs of the proposed grantee; nor will a court of equity, 'after the lapse of seventy years, compel specific performance.
    7. To sustain either remedy, there must be proof of a tender of the release.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 4 and 5;
    decided, June 29, 1861.
    Appeal by both parties, from a judgment entered upon findings of fact and conclusions of law of Mr. Justice Hoefman, on a trial without a Jury, in May, 1860.
    This was an action brought by Peter P. Yan Zandt, Ann Eliza Hedley, George Janeway, William W. Jane-way, Sarah A. Green, Samuel Kuypers and Amelia Ann his wife, William Dawes, Mary A. Dawes, John Yan Zandt, William H. Scofield and Eliza C. his wife, John Eaymond and Johanna his wife, Joseph Torrey and Emeline his wife, Eobert Lane, Peter Y. Z. Lane, Abraham Y. H. Yan Yechten, and Mary Y. Z. his wife, J. Augustus Yan Zandt, William D. Yredenburgh and Julia his wife, the heirs and devisees of Peter Pra Yan Zandt, deceased, to establish their title to a strip of land which had been made many years ago, by filling in land under the waters of the East river, in the City of Hew York, in front of land formerly owned by their ancestor, on the corner of Burling slip and Water street.
    The strip of land in question extends from Water street to South street, along the southerly side of Burling slip, and forms part of an open area or street, known by that name.
    The premises of plaintiff’s ancestor, Peter Pra Yan Zandt, in front of which the strip of land in question lies, were, before that strip was made by filling in land under water, bounded on the East river; and were conveyed to Thomas Clarke, by the defendants the Mayor, Aldermen and Commonalty of the city, in 1692, the grantors covenanting that in consideration of the grantee’s building and maintaining a wharf along the front, which was then under water, the latter and his heirs and assigns should, “at all times, and from time to time forever hereafter, freely and fully have, use, enjoy, take, and hold to his own proper use all, and all manner of profits, benefits, advantages, and emoluments, growing, arising, and accruing by or from the wharf hereinbefore mentioned to be made, erected, and built, or by or from any part thereof.”
    Peter Pra Van Zandt, in 1740, was in possession of the premises conveyed to Clarke, claiming under him, and in the enjoyment of the wharfage arising therefrom. The defendants had, meanwhile, by the Montgomerie Charter, passed in 1730, become the owner in fee of land under water for 400 feet from low water mark, and in 1740 leased to one Provoost a strip of land under water in front of these premises, running from the front out to the line of a new street, now known as Front street, for the term of 99 years, at a nominal rent, upon condition that he should build a street or wharf upon the strip leased, and with a covenant that the lessee might take the wharfage upon the new front thus made. Under this lease the lot in front of Van Zandt’s premises was filled in, and the lessee received thereafter the wharfage upon the new wharf upon Front street.
    In 1807 the filling in was carried still further out into the river, making a new front and wharf and a street thereon, known as South street.
    The area thus reclaimed from the water by successive filling in in front of the plaintiff’s premises, was made an open public street.
    After the first filling in under the lease to Provoost, Van Zandt, the ancestor of the plaintiffs, in anticipation of the second filling in in front of Provoost’s leasehold, petitioned the Common Council for a grant of the lot under water; and upon the report of the committee.appointed and the opinion of counsel taken thereon, the Common Council in 1793 voted that the land under water in front of Provoost’s leasehold should be granted to Van Zandt, on condition that he and the representatives of Provoost should release certain claims to wharfage. Van Zandt and one of the representatives of Provoost, notified to the clerk of the Council their consent to give such release, and the Council ordered a grant to be prepared accordingly. Such grant was never issued.
    Shortly after the expiration of the Provoost lease, a release on the part of the owners thereof now having become unnecessary, this action was brought.
    The complaint alleged that the defendants refused to execute the grant, which they had voted to, and that such refusal injuriously affected the plaintiffs’ title and rendered them unable to dispose of the said premises, and demanded judgment that their title to the strip, extending from Water to South street, 26 feet in width throughout, and to the wharfage in front of the same, be established, and that the defendants execute and deliver to the plaintiffs a grant or grants for the same.
    To this complaint the defendants demurred, and the demurrer being overruled by Mr. Justice Hoffmay at Special Term, an answer of general denial was interposed by the defendants.
    The cause was brought to trial before the same Justice in May, 1858, and again heard before him in June, 1859, at which time he ordered a reference to ascertain the amount of wharfage to be allowed the plaintiffs for breach of the covenants contained in the grant to Clarke. For this purpose the order of reference directed the Eeferee to “ ascertain the net rent which could have been obtained for the use of the water front on Water street of the plaintiffs, under the grant of 1691, from the 21st day of March, in the year 1749, to the time when the land under water was made and filled in down to Front street, or to ascertain the amount of such wharfage in any other manner which the parties may enable him by testimony to do, and he shall deem just.
    “ And in like manner to ascertain the amount of wharf-age from, the period when the said land under water was filled in down to Front street, until the same was filled in down to South street, and in like manner from that period d.own to the date of his report.”

      The Beferee reported that the plaintiff was entitled to the sum of $7,336.50 principal, and $17,261.28 interest.
    The cause was brought to hearing before the same Justice on the 28th and 29th of May, 1860, on exceptions by both parties.
    Motions by the defendants’ Counsel to dismiss the complaint, and also for leave to amend the answer by pleading the statute of limitations, were each denied, and exceptions taken. The Court thereupon rendered its decision in favor of the plaintiffs for $7,336.50, but with interest only from 30th November, 1859, and costs.
    Judgment having been rendered thereon, both parties appealed.

      S. W. Roosevelt and James T. Brady, for plaintiffs.
    I. Under the resolutions of. the Common Council the plaintiffs obtained title to the land under water extending from Front to South street.
    II. The resolution was an act or ordinance of a corporate body, having legislative power sufficient of itself to pass title without the formality of a grant or deed.
    III. The terms had been accepted, and the grant was ordered to be prepared. Nothing was left to be done but the mechanical or ministerial act of impressing the corporate seal, and affixing the signatures of the Mayor and Clerk, for which the authority and direction were final and complete. (Brady v. The Mayor, 1 Barb., 584-591.)
    IV. If not an absolute conveyance, it is a contract to convey, and is binding upon the grantors, and not repealable, (see Milhan v. Sharp, 15 Barb., 229,) the conditions having been performed or accepted.
    V. Under it the plaintiffs are entitled to the land, or its value and interest, (Baldwin v. Munn, 2 Wend., 399, 406,) the dedication as a public street notwithstanding.
    ' The plaintiffs demand judgment for the land which the city agreed to convey; but are willing to accept the value of the land in lieu thereof. It is not enough to allow them merely wharfage.

      VI. In case the plaintiffs are remitted to their claim for wharfage, under the deed to Clarke, which was released as a consideration of the grant to be made to their ancestor, no objection can be made that they have failed to prove in what manner they became entitled to the covenants in that grant. And interest on such sums as might have been collected is a part of the plaintiffs’ damages.
    It being shown that the plaintiffs are entitled to recover in some form, the demand for judgment in the complaint does not conclude him; but he is entitled to recover according to his case as proved. (Marquat v. Marquat, 2 Kern., 336 ; Sinclair v. Fitch, 3 E. D. Smith, 678 ; Lewis v. Varnum, cited in 3 Id., 690.)

      John E. Burrill and H. H. Anderson for defendants.
    I. The complaint is framed on the theory either that plaintiffs have acquired the equitable title and the right of wharfage incident thereto, and are entitled to demand a grant, or that they are entitled to a specific performance of an agreement for such grant.
    H. The following material allegations of the complaint have not been found proved:
    I. That the grant to Clarke embraced the right to wharfage.
    2. That Johannes Van Zandt became entitled to the bulkhead and wharfage in front of the lot.
    3. That Peter Pra Van Zandt became seised of the same premises and wharfage.
    4. That the lease to Provoost was a breach of the covenant in the grant to Clarke.
    5 That there was delay on the part of Provoost in the use of his lease, and ignorance on the part of Van Zandt of its existence.
    6. That Burling slip has been filled in, and that the street thereby made is not necessary for public use.
    7. That Van Zandt accepted the conditions upon which the committee recommended that a grant be issued.

      8. That the grant was to include the right to wharfage, and that its delivery was duly demanded.
    9. That the persons in the complaint named were Van Zandt’s heirs-at-law or devisees.
    HI. The plaintiffs were not entitled to judgment for a grant of the premises:
    1. The grant to Olarke did not convey, or covenant to convey, any interest in land under water.
    2. It would not have entitled Olarke to a conveyance of it, even had the defendants owned it at the time of the conveyance, and subsequently determined to fill it in. (Whitney v. The Mayor, Court of Appeals ; see also 11 Peters, 545 ; 2 Black. Com., 347.)
    3. At the time of the grant to Clarke, the land under water beyond low-water mark was vested in the crown. (Dongan’s Charter, A. D. 1686, § 3 ; Kent’s Notes, 17 Hoffm. Tr., 158.)
    4. And the grant was subject to this right.
    5. Clark did not, either as the owner of the upland, or by force of the covenant, acquire even a pre-emptive right or privilege to any part of the 400 feet of land under water which defendants acquired by the Montgomerie charter. (Hoffman’s Treatise, 199, 200 ; note 50-53 ; Furman v. The Mayor, 5 Sandf. S. C. R., 16, 42 ; S. C., 6 Seld., 569 ; Lansing v. Smith, 4 Wend., 9 ; Gould v. Hudson R. R. Co., 2 Seld., 523.)
    6. By that charter mentioned, this land was given to defendants for important public purposes, and the Corporation cannot be estopped from executing such trust, nor can the objects be impaired by the agents of such Corporation. (Whitney v. The Mayor, Court of Appeals ; Opinions of Denio and Edwards ; Presbyterian Church v. The Mayor, &c., 5 Cow., 538 ; Lansing v. Smith, 8 Id., 146 ; Gozzler v. Georgetown, 6 Wheat., 593 ; Charles River Bridge v. Warren Bridge, 11 Peters, 420.)
    7. A covenant to convey the premises could not be enforced specifically, after such lapse of time. (Ballard v. Walker, 3 Johns. Cas., 60 ; 2 Story Eq. Jurisp., § 771.)

      8. The land, in question forms a public street, and defendants cannot grant it.
    9. The claim to a grant based upon the proceedings of the Common Council cannot be sustained. They had no power to agree, and neither an agreement nor a consideration nor performance is proved.
    IY. The Court below, having decided that the plaintiffs were not entitled to a decree for a grant, should have dismissed the complaint; and erred in retaining the cause to award damages for the alleged breach of covenant. (Bunten v. Orient. Mut. Co., 4 Bosw., 254 ; Salters v. Genin, 7 Abb. Pr. R., 194 ; Hatch v. Cobb, 4 Johns. Ch. R., 559 ; Kempshall v. Stone, 5 Id., 193 ; Morss v. Elmendorf, 11 Paige, 277, 287, 288.)
    Y. There has been no breach of the covenant, for it related only to the wharf, and ceased when the Corporation, in the exercise of the power conferred upon it by the Montgomerie Charter, filled up the land beyond it.
    1. A covenant, on the part of the defendants, that the premises shall always remain a wharf, cannot be created by implication. (Charles River Bridge v. Warren Bridge, 11 Peters, 421, 545 ; 5 Sandf. S. C. R., 44 ; Whitney v. Mayor, Court of Appeals, per Edwards, J.)
    2. It is reasonable to suppose that the parties contracted in view of the rights of the Crown and Corporation under the Dongan Charter. ( Furman v. Mayor, 5 Sandf., 44.)
    3. And that defendants did not intend to covenant against the right of the sovereign.
    4. The construction claimed by the plaintiff would deprive the Corporation of the right to make use of the land under water in front of the wharf, after they had acquired the title to it, and thus to defeat the intention and objects of the charter. (Cases cited under second Point.)
    YI. The acts complained of were lawful acts, done by virtue of the power and obligations conferred and imposed by the Charter of Montgomerie, and no action can be maintained for injuries occasioned thereby. (38th section of Montgomerie Charter ; Kent’s Notes, 147, 148.)

      The acts were done in the exercise of sovereign power delegated to the defendants, and no action can be maintained for injury resulting therefrom. (Radcliff’s Executors v. The Mayor, 4 Comst., 204 ; Sedg. on Damages, 111, 114 ; Lansing v. Smith, 8 Cow., 146 ; S. C., 4 Wend., 9 ; Gould v. The Hudson River Co., 2 Seld., 522.)
    VII. The plaintiffs did not allege or prove themselves to be heirs of Clarke.
    VIII. The plaintiffs were not entitled to maintain the action for breach of the covenant.
    1. The covenant did not run with the land: the right of action vested in the personal representatives.
    2. If the covenant were one running with the land, it was broken by the lease to Provoost,' and the subsequent filling in of the land beyond Water street, and the right of action then vested in the personal representatives of the one owning the premises at the time. (Beddoe's Ex’r v. Wadsworth, 21 Wend., 123.)
    3. And, moreover, the covenant attached to the entire tract, and passed to all the parties who became entitled thereto by grant, descent, or devise.
    IX. The plaintiffs were not entitled, under any theory, to damages for any breach before they first became joint owners of the premises, nor to wharfage for any period before the youngest of their titles vested. (Lucy v. Levington, 2 Lev., 26.)
   By the Court—Woodruff, J.

At the time of the grant to Thomas Clarke, under which the plaintiffs herein, or their devisor, claimed title to the lot of ground at the southwest corner of Burling slip and Water street (viz., in 1692,) the defendants had no title to the lands lying-under the waters of the East river below low-water mark.

All the title, therefore, legal or equitable, to any land, which passed by force of that grant, was limited towards the East river by the line of low-water mark. The land under water extending beyond that line was vested in the Crown, and could not be granted by the defendants.

Heither did that grant operate upon the defendants as an estoppel, for they did not profess nor attempt to grant, nor warrant to the said Clarke, any land beyond that line.

I think the conclusion direct and obvious, that by force of the grant to Thomas Clarke, neither the plaintiffs, nor their devisor or ancestor, acquired any right to land lying in the river beyond low-water mark, nor could they by virtue of such grant compel the defendants to procure or convey to them such title.

That this is so will appear, if it be supposed, for the purposes of the question, that the Crown (in whom the title to the lands was vested) had never granted the lands below low-water mark to the defendants.

But by the grant in question the defendants did expressly covenant that if the said Clarke performed the conditions of the grant, he, his hems and assigns should have, use, enjoy, take and hold to his and their own proper use all and all manner of profits, benefits, advantages and emoluments growing, arising or accruing by or from the wharf to be made, erected and built by him upon the outermost end of the land granted. By the previous covenant for quiet enjoyment, the defendants assured him the full use and enjoyment of the whole of the granted premises, but having provided that he should build, keep up and maintain a wharf upon the outermost end, along low-water mark, which should be a public street or way for the use of all the inhabitants, the subsequent covenant was added in order that such giving up of a portion of the granted premises to the public use, as a street, might not seem to deprive him of the same for any purpose which was consistent with the use thereof by the public as a street.

The result was, that on the performance of the conditions, Clarke became and was the owner in fee of the whole granted premises, subject to the public use, as a street, of the portion lying along low-water mark—protected by an express covenant that he should have, hold, use and enjoy all the profits, benefits, advantages and emoluments arising or accruing therefrom (subject, of course, to the public use as aforesaid.)

These rights were, in respect to the exterior line, nothing more, practically, than the right to receive wharfage from those who should use or make fast to the premises; but this right was, I think, clearly a part of the subject granted. The soil itself on which the wharf was built, passed by the grant, and but for the clause requiring a street to be laid out, the right would have been entirely clear, and would have been protected by the general covenant for quiet enjoyment, without the aid of the special covenant above referred to; and the right is, 1 think, plainly protected (subject to the public use of the street) by all the covenants in the grant, viz., the covenants for quiet enjoyment, against incumbrances, &c., and for further assurance during the then next seven years ensuing the date thereof.

It follows that the right of Thomas Clarke to the wharfage and emoluments to arise or accrue from the wharf, lay in grant, and not in covenant merely; it was part of the thing granted; it was a necessary incident to the fee of the land granted, and on which the wharf was built, just as truly as the use of any other part of the lot passed with the grant of the fee of the lot.

The fact that the right was protected by a special covenant, assuring the enjoyment to him, did not change the character of the grant in this respect; it remained a part of the subject granted, and granted in fee. These rights, so secured, therefore, passed to the grantees and devisees thereafter succeeding to Thomas Clarke’s title; and the covenant was one of their assurances of title passing with the fee of the land, just as any other covenant in the deed passed with the land granted; and it was not, as the defendants claim, a mere personal covenant.

In this aspect, therefore, the plaintiffs’ devisor or ancestor in 1749, was the owner of a wharf extending into the Bast river, by grant from the defendants, protected by their covenant for quiet enjoyment, and a somewhat more special covenant that he should forever have, take and enjoy for his own use all manner of profits, and of course among them the wharfage which might accrue, therefrom.

In the meantime, in 1730, by the Montgomerie Charter the defendants had become the owners in fee of the la’nd under water, extending four hundred feet into the river, in front of the wharf in question. But by this acquisition, they acquired no right to interrupt the convenient access to the wharf which had been erected by their procurement, and which was protected by their covenant; and on the other hand, that acquisition in no wise enlarged the previous grant, nor conferred upon the owner of the wharf any greater or other rights than he had before.

In one respect, the position of the owner may, perhaps, have been improved: the defendants, by obtaining the grant of the land under water in front, were placed in a situation in which they had power to perform to the fullest extent the covenant securing to their grantee and his assigns the use of the wharf as such forever.

But, as already observed, the defendants, in virtue of .their ownership of the lands under water, were not absolved from their covenant, and the moment the lot in front was so filled in as to obstruct the use of the wharf, the defendants were liable. Any filling in or erection which constituted such an obstruction was a private nuisance. I think it clear that had a Oourt of Equity been applied to, the defendants would have been restrained, and the lease to Provoost and the filling in prevented.

Doubtless the defendants, in virtue of their powers over the subject of streets and wharves, might have regulated that part of the city as the public interest should require. In the exercise of those powders they would have proceeded according to the laws permitting the taking of private property for the public use, and the owner would receive such compensation as by such laws he might be entitled to; but they could not deprive the owner of that' wharf of his profits to arise therefrom, by converting the lot in front to a private use; and their doing so was a breach of covenant, for which they were liable.

In a loose sense it may be said that the owner of that wharf was in fairness entitled to have a grant of the land in front, if the defendants granted it to any one, but no rule of law or equity required the defendants to grant it to such owner.

In this state of the rights of the parties the defendants did give a lease of the ground in front of the wharf, and since that time the ground has been filled in so that no profits can, nor so long as Water street continues to be a public street, will arise or accrue from the wharf which belonged to the ancestor or devisor of the plaintiffs. It is found that the space between Water street and Front street'was filled in, in 1755, more than one hundred years ago, and the space between Front street and South street was filled in, in 1807, more than fifty years ago. This filling in was of course permanent, and in its very nature was fixed aud perpetual.

There is no warrant for the suggestion, that the defendants had so granted the right to have the wharfage, that upon the filling in of the space in front, the owner of the wharf was entitled to the wharfage on the new water-line and to the intermediate space. We know of no rule or principle of law or equity upon which the line or boundary of an owner is to be deemed ambulatory, merely because his grantor has interposed a permanent obstacle to its enjoyment in the mode contemplated in his grant. It may be possible so to grant the right of wharfage along the river, as that the grantee may take the wharfage from whatever wharf (more or less extended into the water by the grantor) it may arise, but a grant of a definite piece of ground to be filled or built upon as a wharf, with all the profits derivable therefrom, however it may entitle the grantee to prevent an obstruction to its use as a wharf, or to have damages for such an obstruction, gives no right to claim wharfage from another wharf in front, nor does such an obstruction alter or enlarge the definite boundaries of the grant.

The consequence is, the obstruction having been interposed, it having been made permanent, the owner of the wharf had a claim to redress, and that could only be a claim to damages for the injury to his land, an injury inflicted in violation of the defendants’ covenant. And that injury was fully and finally consummated and made perpetual as early as the year 1755. For it is not apparent that the subsequent filling in between Front and South streets can affect this question.

In this aspect of the case the question seems to be reduced to this: Can the heirs-at-law or devisees of Peter P. Van Zandt, who died in 1811, maintain an action for such an injury as is above described ?

In the first place, the claim for damages vested in Peter P. Van Zandt was a mere chose in action. If that claim be regarded as single and entire, it accrued as soon as a permanent obstruction to the use of the wharf was created, and the measure of damages was the whole depreciation in the value of the wharf caused thereby. If it be regarded as a claim to recover the amount of annual income, of which by reason of the obstruction he had been deprived, and it be confined to past injury only, the result •is the same in this respect, viz.: so far as such damages were sustained prior to his death. It was a chose in action, and it passed to the personal representatives of the deceased, and the present plaintiffs, as heirs-at-law or devisees, have no title thereto.

But I think it clear that if an action had been brought by Peter P. Van Zandt in his lifetime, for the damages caused by the injury to Ms wharf and the breach of the defendants’ covenant, that recovery would have embraced entire damages for the whole injury, and he could not have brought successive actions year after year for the annual value of the wharf as damages. As a wharf, it was destroyed, and it had no further value, and could have none; as a wharf it could not thereafter yield any income.

If one’s lot be trespassed upon, and the owner be deprived of the use thereof for a year, its annual value is the measure of damages. If one’s horse is wrongfully taken and retained for a month, the value of its use for one month may be recovered as damages; but if one’s horse be killed, there can be but one recovery therefor, and that is for the value of the horse; and if by some fixed and permanent erection, one’s land be rendered perpetually and finally valueless, or one’s dwelling house be injured so as to be untenantable, the claim for damages is not a claim to recover an annual rent therefor, and by successive actions to be brought year after year so long as grass grows and water runs. (See Leffingwell v. Elliott, 10 Pick., 204 ; Brooks v. Moody, 20 Pick., 474 ; Lethbridge v. Mytton, 2 B. Ad., 773 ; Hodsoll v. Stallebrass, 11 Ad. & Ellis, 301.)

It is not like cases of continuing trespasses in which the guilty party may be said to maintain a nuisance, or in theory repeat his wrongful act. Here, the matter complained of once done is done forever, as truly as if the wharf, as a wharf, had been annihilated. So in actions on the covenant for quiet enjoyment when the plaintiff is evicted, the right of action is immediate and the recovery of damages once had is final, and generally the action for any breach of covenant arises immediately upon the happening of the breach, and the whole damages are to be recovered in the one action.

I think, therefore, the whole cause of action accrued to Peter Pra Van Zandt or his ancestor, and that the plaintiffs have no cause of action in respect thereto.

I have treated of this branch of the subject as I would if this action had been brought to recover damages for an injury to the plaintiffs’ land. If it were possible for them to maintain such an action upon the facts disclosed in this case, I should greatly doubt the propriety of allowing such a recovery upon the present pleadings. There is nothing in the complaint which would suggest to the most careful student, that the plaintiffs intended any such claim; they claim title to certain premises in front of or in the vicinity of a wharf which they own, and ask that their title to such other premises be established and that defendants be compelled to execute a grant therefor. They recover, not for any breach of an agreement to give such a grant, but for a breach of a covenant for the enjoyment of the wharf of which they have already all the grant they are entitled to. It seems to me that if such had been their action the defendants would not only have had a sufficient defense upon the grounds already suggested, but that other defenses would have been readily available, which, in the defendants’ answer in that case, might have been set up for their protection.

But it remains to notice the claim, as the plaintiffs do, in fact, make it in their complaint, viz., to have their title to the land in front established, and a grant from the defendants compelled.

It has already been shown, I think, that by virtue of the grant to Clarke, they have no such title to the relief they seek; he never had any right or title to the land below low-water mark.

The plaintiffs, however, rely on the proceedings of the defendants, as entitling them to the land.

How, in the first place, those proceedings did not convey the title; if they did, there was no occasion for the plaintiffs to bring this suit; an ejectment would be the proper remedy. But they did not give title, nor purport to grant the land. At most, they were the consent of the defendants to give a grant upon certain conditions, to which they were informed Peter P. Van Zandt and one of the executors of Jacob Brewerton had signified their assent. Assuming that this would amount to a contract binding the defendants, these observations are pertinent.

As an action for damages for breach of that contract, this action cannot be- sustained, because such cause of action is vested, not in the heirs but in the personal representatives.

As an action to compel specific performance of the contract, it will suffice to say that, after the lapse of more than seventy years, a Court of Equity would not entertain such an action. Every presumption exists that some other arrangement was made between the parties, and the contract abandoned or in some manner satisfied.

And in either aspect the plaintiffs’ case is radically defective, in this that it does not appear that either Van Zandt or the representatives of Brewerton or Provoost ever tendered performance on their part, and without that they could have no claim to damages or to specific performance.

I think the case depends upon no principles that are obscure or uncertain, and that the plaintiffs have here no cause of action upon any facts proved or found. The judgment should therefore be reversed and a new trial be ordered; costs to abide the event.

Hoffman, J.

— There were some propositions stated in the opinions delivered when the case was before me, at Special Term, on demurrer, and when it was tried, which I am satisfied are correct, and tend to explain my views of the ease. They are also in conformity with positions of Mr. Justice Woodruff in the opinion of the Court.

In 1692, when the Corporation conveyed to Clarke the ninety-five feet on the East river, at low-water mark, “with the right of all slippage and wharfage in front of the premises,” they had a right and title down to low-water mark, and none beyond it. (Dongan’s Charter, §§ 3 and 4 ; Hoffman’s Law of the Corporation, 148.)

Then by the Charter of 1730, the Corporation obtained from the Crown, in effect, the right to four hundred feet beyond low-watér mark into the river. Ho right attached to the owner of the slip between high and low-water mark, to even a pre-emptive privilege for any part of this four hundred feet. A practice prevailed of tendering the preemption, but it was never allowed or recognized as a legal right.

By a proviso contained in the thirty-eighth section of the Charter, “Nothing herein shall be construed to empower the Mayor, Aldermen and Commonalty, to wharf out beyond any persons who have prior grants from us, or some or one of our predecessors, of quays or wharfs, beyond low water, without the actual agreement or consent of such persons, their heirs or assigns, owners of such quays or wharfs.”

This provision was limited to grants of Montgomerie as Governor, or his predecessors under the Crown. It left the question as to legal rights and powers of the Corporation to wharf out in front of their own grantees, with covenants such as in the present case, to the decision of rules of law, and the control of courts of justice.

It is clear to my mind, that the Corporation were not absolutely restricted by their grant or covenant, from extending the frontage on the river, and filling up further into the river, for important public purposes. But it could not, by so doing, discharge itself from a responsibility incurred by its grant or covenant. In some mode, compensation was due to its grantee.

In the year 1749, the lease was made to Provoost of the parcel in front of the granted premises, for the term of ninety-nine years. In the opinion of Alexander Hamilton and Samuel Jones, this lease is treated as a breach of the covenant with Clarke and his assigns.

In 1755, the filling in was completed from Water street down to Front street, and the pier of eight feet wide on the side was finished. In 1807, it was further filled in and carried forward into the river from Front to South street. The whole space in front of the twenty-six feet acquired under the Clarke grant, is now, and has been, an open street down to the easterly side of South street since 1835.

The acts and negotiations between Peter P. Van Zandt and the Corporation, after the opinion of Hamilton and Jones, all proceeded upon the ground of a claim resting in damages, to be liquidated, as once proposed, by the transfer of a certain parcel of ground.

The order of reference which was made in this cause by me proceeded on the same basis, viz.: to ascertain, in the best manner I could suggest, some mode of attaining, a* fair compensation in the shape of damages, adjusted upon such profits as it might be shown could have been received.

The principle was to ascertain what could have been received for wharfage for the front on the east side of Water street until the filling up to Front street, and then on Front street till the filling up to South street.

This was not on the basis of a right having passed from the front on Water street to that on Front, and so to that on South street; but as a mode of arriving at what would have been earned, had the frontage remained unchanged.

The propositions of Hr. Justice Woodkxjit, as I understand them, are: That the claim for damages accrued to Peter P. Van Zandt, as early as 1755, when the ground, from Water to Front street, was permanently filled up, and made a, complete and "permanent obstruction. Had he sued in his lifetime, he must have recovered his whole damage iu one suit. There could not have been such a succession of breaches as to warrant successive actions. Then the right was a right in action vested fully and entirely in Van Zandt, at his death in 1811, and which went, upon his death, to his personal representatives. “The present plaintiffs, as heirs-at-law, or devisees, have no title thereto.”

T have examined the following leading cases, and it appears to me that the first of these propositions is sustained by them, and is undoubtedly correct: Hambleton v. Veere, (2 Saunders, 170 ;) Fish v. Folley, (6 Hill, 54 ;) Crain v. Beach, (2 Barb. S. C. R., 120, and 2 Comstock, 90 ;) Blunt v. McCormick, (3 Denio, 283 ;) Shaffer v. Lee, (8 Barb. S. C. R., 412 ;) Royalton v. Royalton and Woodstock Turnpike Company, (14 Vermont, 311,) and Hodsoll v. Stallebrass, (11 Adol. & Ellis, 301.)

But it appears in the case, though not stated in the findings, that Peter P. Van Zandt, by his last will and testament, dated October 5,1810, bequeathed as follows: “And whereas the Corporation of Hew York, in the year 1748, did grant to David Provoost (I being of eighteen years of age and living in the country) a pier or street for ninety-nine years, before the front part of my dock, joining on Burling slip, from Water street to Front street, and thereby deprived me of my wharfage of said property; my will is, and I do hereby devise and bequeath all my right, title, claim, and interest in the premises unto my said children or the survivors of them and their heirs, equally to be divided between them, share and share alike.”

What objection is there to the effect of this will, being to transfer all the right to the wharfage or damages and all right of action which Van Zandt had, to his children? The complaint professes to derive the title of the plaintiffs through such children, although only eleven-fifteenths are accounted for.

Ho objection has ever been taken to the right of these parties to sue, if there was ally right in or under Peter Van Zandt.

A right to a specific legacy of personal property will vest, and the legatee may enter and take possession with the assent of the executors. (Tole v. Hardy, 6 Cow., 339 ; Matthews on Executors, p. 176 ; Law Library, vol. 9.) The assent may be expressed or implied. (Id.)

When such an assent is obtained, the legatee may bring trespass for injury done before the assent. (Chitty on Pleadings, vol. 1, p. 169 ; citing Bro. Abr., Tit. Trespass, pl. 25.)

I should think that the executor’s assent would be implied after a considerable lapse of time from the death of the testator, when the plaintiffs were the beneficiaries, and no objection to their right to sue had been taken.

Supposing that an action for damages would lie in favor of the present plaintiffs, the next question is, can the present action be treated as such ? Can damages be recovered under it ?

The complaint would be quite defective in allegations to warrant a judgment for damages, had the summons been for a money demand, and the prayer of the complaint framed for the payment of the damages sustained. Neither the nature, the extent, nor the causes of damages are set forth, except merely that there was a covenant and a breach; but the object of the complaint, and what it is framed to obtain, and demands payment for, is the land under water in front of the premises of Van Zandt, on Water street; and that tlie title of the plaintiffs extending from Water to South, twenty-six feet in width throughout, and to the wharfage in front of the same, be established, and that the defendants execute a grant for the same.

I concur with Mr. Justice Woodruff, in the opinion that under such a complaint, a recovery could not be had upon the trial, for damages. The cases cited of Morss v. Elmendorf, (11 Paige, 277,) and Saltus v. Genin, (3 Bosw., 250,) appear to me decisive.

But in the points of the plaintiffs, the relief asked is varied. They ask for a conveyance of parcel B. on the diagram annexed to the case, extending from Front to South street.

This claim, thus modified, is placed upon the action of the Corporation in various reports and resolutions set forth in the case. They result in this: that if Van Zandt would release all claim against the Corporation for or on account of slippage, wharfage, or any other matter touching the slip, or the water lots adjoining the same, the grant of the parcel in question should be made. There is a report from the Clerk of the Board, that Van Zandt had stated his willingness to comply with the conditions, and take the grant, and then an order that the grant be made.

This final act was in February, 1795. Suppose Van Zandt had required performance of this contract .within a year after the last resolution in 1795, it would have been essential for him to have proven a tender of the release made a condition of the grant, and a demand for the grant. The lapse of sixty-two years does not render this obligation less imperative. No tender or demand is in evidence as having ever been made.,

Again, the Corporation, for a long series of years, could have complied with the demand. Van Zandt, sleeping upon his rights, allows the space to be occupied as a public street. The Corporation cannot dispossess the'public of the easement, certainly not without a closing upon.application to the Supreme Court, which nothing now known would justify. The claim, evenym this footing, has been converted into one for damages, by the plaintiffs’ and their ancestors’ own conduct.

I am satisfied that I did wrong at Special Term in entertaining the action, even for damages.

The judgment must be reversed, and a new trial granted.


source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    Henry N. Beers, Plaintiff and Respondent, v. Charles G. Waterbury et al., Defendants and Appellants.
    1. Under the provision of the Laws of 1833, ch. 279, (2 Rev. Stat., 3d ed., 196,) which requires chattel mortgages to be refiled annually, “ together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof,” a statement is sufficient which annexes and refers to another document filed with it, if the two papers( read together in connection with the original mortgage, disclose the interest of the mortgagee intelligibly.
    2. On refiling a chattel mortgage, which, by its terms, was given to secure the payment of notes, and also to secure the mortgagee against outstanding liabilities, the statement annexed was that the amount of the unpaid notes constituted the amount of the mortgagee's interest, and made no reference to any claim that the mortgage was held as a security against the outstanding liabilities. Such outstanding liabilities then, in fact, existed, and a copy of an agreement between the parties, which was annexed and filed with the statement, and referred to in it, stated that the mortgage was given to secure such outstanding liabilities. But this agreement was made some months before the making and filing of the statement; Held, that as against subsequent purchasers, the renewal of the mortgage was good as to the amount claimed as due upon the notes; but it was not good as to any of such outstanding liabilities.
    3. An understatement of the amount due does not affect the validity of the mortgage as to the amount which is stated; but the mortgagee cannot, as against the parties designed to be protected by the statute, afterwards claim that any greater sum is secured by the mortgage than is mentioned, in terms or by intelligible reference, in his statement.
    4. Notice of the facts, to render such a defective statement sufficient as against subsequent purchasers, must be actual notice, not merely of the mortgage, but of the actual amount for which the mortgage was held as security when they purchased.
    5. A chattel mortgage was given to secure, among other things, liabilities of the mortgagor assumed by the mortgagee, and the schedule annexed specified money paid for taxes to the amount of $300, and the complaint in an action to foreclose the mortgage claimed only the payment so specified; but on the trial proof was received, without objection, of the payment of another tax, and its recovery was allowed; Held, that this was error, for as against subsequent purchasers not having any notice of the mistake by which this other tax was omitted, only the amount specified in the schedule could be recovered.
    6. An exception to the decision of a Judge, before whom a cause is tried without a Jury, fails, if the conclusions of law stated and the judgment settled upon the decision do not pursue the decision in respect to the point excepted to, but are in conformity with the exceptant’s view.
    7. The purchasers of personal property upon which there is a valid chattel mortgage, who consume or sell a part of the property, so that what remains does not produce sufficient to satisfy the mortgage debt, may be held personally liable for the deficiency.
    8. This is so even though they took the property in hostility to the mortgage, and denying that it was an existing lien.
    9. A stockholder of a corporation holding a claim against it for which the stockholders are individually liable, cannot recover upon it in an action against one of the stockholders individually. He can only set up the claim in a proper action against the stockholders generally for a contribution.
    10. A demand not set up as a counter-claim in the answer, cannot be recovered as such.
    11. In an action by a mortgagee of chattels to foreclose the mortgage and to obtain a personal .judgment for the debt, subsequent purchasers of the mortgaged property cannot avail themselves of a demand in favor of the mortgagor, against the mortgagee, as a counterclaim.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 9;
    decided, June 29, 1861.
    Appeal from a judgment entered upon the decision of Mr. Justice Hoffman at Special Term.
    This action was brought to foreclose a chattel mortgage, joining as defendants, subsequent purchasers of the mortgaged property, and seeking to charge some of them with any deficiency that might arise by reason of their having consumed a part thereof. The defendants were Bobert J. Jimmerson, James T. Husted, Charles G. Waterbury, David L. Youngs, and the Dry Dock, Grand Street, Bowery and South Ferry Stage Company.
    The chattel mortgage was given February 1st, 1854, by the defendants, Jimmerson and Husted, to the plaintiff, upon certain horses, stages, &c.
    The plaintiff, Beers, and defendant, Jimmerson, had been partners in a stage establishment in the City of Hew York. Beers sold out his interest to Husted, one of the defendants, who gave in payment 28 promissory notes for an aggregate amount of $18,064.29; and Husted and Jimmerson, forming a new copartnership, secured Beers for those notes, and also against his liability for debts of the old firm, by this mortgage upon the entire property.
    Sometime in the spring of 1854, Jimmerson and Husted became insolvent, and assigned their property, and subsequently the assignee, with the concurrence of Jimmerson and Husted, sold the stage establishment, embracing the property covered by the mortgage to Beers, to the defendants, The Stage Company, a Corporation formed under the General Act of April .4, 1854, and as one of the conditions of the- transfer, that Company assumed the payment of all the debts and obligations secured by the plaintiff’s mortgage.
    On July 26th, 1854, The Stage Company made a written contract with Beers, by which, in consideration of Beers’ forbearance to enforce immediate payment of the mortgage, which had before this time become wholly due by default, the Company agreed to pay the notes at certain shortened dates, and agreed to issue forthwith to Beers, its stock for $2,500, to be taken by him at par, and applied upon the debt; but this latter stipulation as to the issuing of the stock, it appeared by the evidence and was found by the Justice who tried the cause, had been abandoned and never performed.
    Among the debts of Jimmerson and Beers, as indemnity against which the mortgage in suit was made, was one to D. Willis for $207.34. This claim was not paid, and suit was commenced for its recovery against Beers and Jimmerson, which was pending at the time of the trial of this action.
    Another of the liabilities of Jimmerson and Beers, which the plaintiff claimed to be indemnified against by the mortgage, was an item for taxes on the premises occupied by the stage establishment, which were held under leases to Jimmerson and Beers binding the lessees to pay the taxes. Beers was obliged to pay these taxes with the interest accrued upon them, the amounts thus paid being one of $356.18, paid January 15th, 1857, and one of $181.45, paid December 31st, 1855. The landlords paid the taxes and Beers refunded to them.
    The plaintiff’s mortgage was filed in the register’s office, February 2d, 1854.
    Within a year thereafter, on the 1st of February, 1855, a copy of the mortgage was filed, together with a statement for its renewal, and a copy of the agreement modifying the time of payment of the notes. The statement for renewal, after certifying that the notes which had become due had been paid in the manner provided in the agreement, stated “that the notes which, by the terms of said agreement, have not become due, have not been paid, but remain owing to me thereupon at the date hereof, “the amount of which unpaid notes constitutes the amount of my interest in the property claimed by me, and therein mentioned and described, by virtue of the said mortgage, and I claim to hold the said property.”
    The statement made no reference to any outstanding liabilities other than the notes mentioned, but the agreement, of which a copy was filed with the statement, did refer to such liabilities.
    Subsequently, the Stage Company executed a second mortgage covering the same property, to one Downing and others, for $50,000, which second mortgage was foreclosed by an auction sale of the mortgaged property. Beers appeared at the sale, and gave notice that the sale would be subject to his prior mortgage, stating the amount due on the notes as the amount unpaid thereon.
    The property was sold to the defendant, Waterbury, who subsequently sold it to the defendant, Youngs.
    In the present action, the plaintiff sought a foreclosure of his mortgage, and a personal judgment against the two latter defendants, as well as the Stage Company, for any deficiency.
    The defendants, Jimmerson and Husted, and the Stage Company, suffered the complaint to be taken as confessed.
    Waterbury and Youngs alone defended. Their answers alleged that the Stage Company had performed the agreement of July 26th, 1854, to give the plaintiff $2,500 in stock, and that the defendants were entitled to the $2,500 credit for that stock, as a payment on the plaintiff’s claim on the notes.
    That the plaintiff held 200 shares in the Stage Company, and that the defendant, Waterbury, held a judgment against that Company, on which execution was issued, and returned unsatisfied; and that the plaintiff, as stockholder, was liable for the amount of the judgment.
    The defendant put in a reply to this counterclaim, alleging that Waterbury was himself a stockholder in the Company, and could have no recourse for collection of his judgment against any other individual stockholder, unless in a suit for contribution, making all the stockholders. parties; likewise denying his alleged ownership of the two hundred shares.
    Upon the trial the defendants proved that Beers was a stockholder in the Stage Company to the extent of four shares, and signed the original articles of association.
    It appeared, also, that the plaintiff had once signed a conditional agreement to take two hundred shares of its stock; but before the Corporation was legally organized, he requested to have his name stricken off from this conditional subscription or promise; and no certificates for these two hundred shares were ever issued or tendered to him, and no claim was made against Mm on account of them until after the company had become insolvent.
    The defendant, Waterbury, became a stockholder in the Company to the extent of five shares, and afterwards, also, a director.
    The defendants, Waterbury and Youngs, admitted, for the purposes of the suit, that they had jointly consumed or converted $4,000 in value of the mortgage property.
    The Justice who tried the cause, at Special Term, found and decided, among other things, that there remained due to the plaintiff of the debts secured by the mortgage, notes to the amount of $5,243.50, with interest, and two sums of $356.18 aud $181.45, paid by the plaintiff for taxes, which were original liabilities of Jimmerson and Beers; and that there remained due a debt of Jimmerson and Beers to D. Willis, for $207.84, against which the plaintiff was entitled to indemnify. He also found that the mortgage was properly refiled, and that the copies and statements filed for renewal were sufficient to entitle the plaintiff to have satisfaction out of the mortgaged property, not only of the amounts due to him on the notes, but also as to indemnity against the outstanding debt to D. Willis and the payment for taxes. To this end judgment was given, appointing a receiver of the mortgaged property, with directions to sell it, and from the proceeds discharge the liability to Willis, and pay the debts due to the plaintiff; and there was a decree over for any deficiency ‘ against Waterbury and Youngs to the extent of the $4,000 by them converted, and likewise against the Stage Company, upon their personal liability for the entire deficiency;
    From this judgment Waterbury and Youngs now appealed.

      J. W. Edmonds, for the appellants.
    I. As to the claim for the debt owing to Willis, the mortgage was for indemnity only, and the plaintiff was - not damnified. He must have actually paid to be damnified, and could not recover it without first paying it.
      (Campbell v. Jones, 4 Wend., 312 ; Taylor v. Higgins, 3 East., 169 ; Cumming v. Hackley, 8 J. R., 202.)
    If he should become insolvent, or never pay, he could not recover on a contract of indemnity. (St. Albans v. Curtis, 1 D. Chip., 164 ; Pond v. Warner, 2 Vern., 532.)
    I. As to the taxes. The mortgage was to indemnify against the obligations mentioned in the schedules, and the schedule in that regard only contains “ Taxes, $300.” The complaint avers that these were the taxes for the year 1853, in arrear. But the judgment has allowed not only that sum, but an additional sum for taxes of $181.45, with interest from December 31st, 1855, without any other evidence in the case than simply the fact that plaintiff paid that amount.
    This allowance was- not included in the complaint or in the mortgage, and it was not proved that it was for taxes, or for what year, or on what premises.
    III. The amount of stock agreed to be taken by the plaintiff, $2,500, ought to have been deducted from the plaintiff’s claim as of the 26th July, 1854.
    IV. The covenant in the mortgage, as to its lien on substituted property, is personal, binding only on Jimmerson & Husted, the mortgagors, and not at all on persons taking title from them, unless taken subject to that covenant. Dorr v. Peters, 3 Edw. R., 132 ; Sug. on Vend., 252 ; 1 Story Eq. J., § 576 ; 4 Kent, 421 ; Cumberland v. Codrington, 3 J. Ch., 329 ; Billinghurst v. Walker, 2 Bro. C. C., 608.)
    1. There is no evidence that the mortgagors ever made any substitutions.
    2.. The only evidence of any substitution by any one, is the stipulation which is of substitutions by Waterbury & Youngs, and not by Jimmerson & Husted.
    3. Waterbury & Youngs cannot be bound by this covenant, unless they so agreed.
    4. How, the transfers were from the Stage Company to their mortgagees, Downing and others, in trust; from the mortgagees on foreclosure to Johnson; from Johnson to Waterbury; and from Waterbury to Youngs, for a full and fair consideration paid, and in no instance subject to the mortgage, but in direct conflict with it.
    5. All that can be brought home to Johnson, Waterbury & Youngs, is the knowledge that plaintiff claimed there was some $5,000 due him on the mortgage.
    6. That cannot be enough to compel the additions they make to the stage line, to be subject to the mortgage.
    7. The mortgage could operate only in presentí, and could not include or bind future acquisitions. (2 Story Eq. J., § 1021 ; 4 Kent Com., 144 ; Carleton v. Leighton, 3 Mer., 667 ; Gardner v. McEwen, 5 Smith, 125 ; Van Heusen v. Radcliff, 3 Id., 582 ; Edgell v. Hart, 5 Seld., 213 ; Otis v. Sill, 8 Barb., 102 ; Milliman v. Neher, 20 Id., 37.)
    V. The whole ground of this action against Waterbury & Youngs, is, that the property was sold to them subject to the mortgage.
    1. The evidence is, that they took in hostility to the mortgage, and not subject to it.
    2. Mere notice to them is not enough for this purpose.
    3. This action must therefore fail, as to their personal liability, particularly as to Waterbury, who never assumed the obligations of the mortgage, and is not the owner of the property.
    4. The decision is therefore wrong in charging them with any personal liability, whatever may be the liability of the property.
    5. So far as they are concerned, it is a liability for the debt of a third person, and void under the statute of frauds.
    YI. Waterbury & Youngs were hona fide purchasers, exempt from the lien of the mortgage.
    1. The mortgage was not properly renewed in 1855; it had no statement of the amount due. (2 R. S., 3d ed., 196, § 11 ; Fitch v. Humphrey, 1 Denio, 163 ; Ely v. Carnley, 3 E. D. Smith, 490 ; S. C., 19 N. Y. R., 496.)
    VII. Waterbury’s counterclaim was valid. (Spear v. Crawford, 14 Wend., 20 ; Simonson v. Spencer, 15 Wend., 548 ; 3 Hill, 190.) Beers was a stockholder. The statute makes the stockholders liable to creditors jointly and severally, (Laws of 1854, p. 329, § 10 ;) and Waterbury was a judgment creditor, with an execution returned unsatisfied.
    VIII. It having been proved that plaintiff was a subscriber for $5,000 of the stock, which he had never paid for, and for which he is still indebted to the Company; that amount, with interest from the time of his subscription in May, 1854, ought to be deducted from his claim. (Same cases.)

      William M. Evarts, for respondent.
    I. The validity of the mortgage, and the regularity of its filing are beyond dispute. The copies and statements filed for renewal are in proper form and sufficient. '
    But, if any question of their regularity or completeness could otherwise be raised, all the defendants are precluded from raising any such question—the Stage Company, because by their purchase from the assignee of Jimmerson .& Husted, and by the agreement of July 26th, 1854, they ■expressly assumed the mortgage debt, and affirmed the mortgage, and because they suffered the complaint to be taken as confessed, and the defendants Waterbury and Youngs, because they purchased with express notice of the mortgage.
    II. The finding of the Judge that the Company had failed to-perform the agreement of July 26th, 1854, for the delivery of $2,500 of its stock must be regarded as conclusive, and moreover no different finding upon the point would have been justified.
    III. The other - items established in plaintiff’s favor by the judgment, viz., the two sums' of $181.45 and $356.18, paid for taxes, are clearly established by the testimony, as liabilities of the firm of Jimmerson & Beers, which Beers was compelled to pay, and-against which, by the terms of the mortgage, he was entitled to indemnity.
    IV. The outstanding debt to D. Willis for $207.84 is one for which Beers stands in the relation of a surety, and it is a specific lien on the property.

      In equity, he has a clear right, as surety, to compel the principal debtor to pay it for his exoneration, and to enforce the lien upon the property which stands as security for it. The judgment, according to well established rules, does not direct the payment of the debt to the plaintiff, he not having paid it, but gives him the equitable relief of exoneration from this liability, to which he is entitled, by directing the payment of the debt directly to the creditor, by the receiver, out of the proceeds of the property on which the plaintiff has a lien for his exoneration. (Story’s Eq. Jur., §§ 327, 730 ; Burge on Suretyship, 378 ; Gibbs v. Mennard, 6 Paige, 258, 260.)
    V. The defendants’ exception, for not allowing any sum against the plaintiff upon his alleged subscription for two hundred shares of stock in the Stage Company, is groundless.
    1. No counter-claim of this kind is setup in the answers. The plaintiff’s ownership of two hundred shares is referred to merely by way of inducement, as a basis for the claim to charge the plaintiff, as a stockholder, with a personal liability for Waterbury’s judgment against the Company.
    There is no allegation of an unpaid subscription for this stock, nor any claim set up as in favor of the Stage Company against Beers for the price of it.
    2. The so-called subscription of Beers for these two hundred shares, was a mere expression of willingness to take that amount of stock in a corporation contemplated to be formed. Before it was actually formed, Beers retracted. When the corporation was organized, Beers subscribed in form, but for four shares only.
    VI. No counterclaim can be made in this suit against the plaintiff, upon his statutory liability as stockholder for Waterbury’s judgment against the Stage Company.
    1. The general act under which this Company was incorporated, (Laws of 1854, ch. 142, § 10,) makes all the stockholders jointly and severally individually liable for all the debts of the Company.
    Waterbury, being himself a stockholder, could maintain no action against a co-stockholder to charge him individually with the debt, but only an action for contribution against all the stockholders, charging each with his due share upon an accounting, and of course he can make no set-off of this debt, as an individual liability of Beers. (Bailey v. Bancker, 3 Hill, 190.)

      2. If Waterbury had a valid claim against the plaintiff, individually, it could not be set off in this action.
    The personal liability for the mortgage debt, which is sought to be enforced in this action, is not of Waterbury, but of Jimmerson & Husted, the original debtors, and the Stage Company as debtors by assumption.
    Waterbury and Youngs are made parties merely by reason of their having subsequently come into possession of the mortgaged property. Being made parties only as such possessors, they could not introduce into the litigation, by way of counterclaim, personal claims of their own against the plaintiff. But it appears that Waterbury was not even in possession of any part of the mortgaged property, having, before the suit was brought, transferred it all to Youngs. Certainly, Youngs could not make a set-off of a claim due to Waterbury. (National Fire Ins. Co. v. McKay, 21 N. Y. R., 191.)
    The only personal liability with which Waterbury is charged by the judgment, is a joint charge of him and Youngs, for their joint conversion of mortgaged property to the extent of $4,000, and this judgment is to have effect only in case the sale of the mortgaged property, by the receiver, shall prove insufficient to pay the plaintiff’s claim, Against this joint and contingent liability a set-off of a demand against the plaintiff in favor of Waterbury alone, could not be made.
   By the Court—Woodruff, J.

The original validity of the mortgage given to the plaintiff upon the horses, stages and other personal property described therein is not questioned on this appeal. Yor is it suggested that the amount of the debt remaining due to the plaintiff upon the notes which the mortgage was given to secure, has not been correctly found by the Court on the trial.

The appellants, Waterbury and Youngs, insist that they, being purchasers of the property, hold (or that Waterbury did hold, and Youngs now holds) the same free of any claim of the plaintiff under the mortgage, because the copy thereof, filed in February, 1855, (shortly before the expiration of the first year from its execution and delivery.) was not accompanied by a sufficient statement, showing the plaintiff’s interest at that time in the property.

The statement then filed, taken by itself alone, did not disclose the interest of the mortgagee, it neither stated, in terms, the amount which had been paid upon the mortgage debt, nor the amount which remained unpaid. It was, however, accompanied by a copy of an agreement made subsequent to the giving and filing of the original mortgage, .and such agreement was referred to in such statement, and the copy was filed therewith. If the two papers, read together in connection with the original mortgage, disclosed the interest of the mortgagee intelligibly, the statement should not be held insufficient, on the ground that the amount for which the mortgagee still held the mortgage as security was not specifically named. The agreement recited the several notes which were given to the plaintiff in part payment of the price at which he had sold his interest in the property, and stated when they were given, and when they had or would become due, according to their terms, and then proceeded to modify them in some particulars as to the times of payment; and it is not denied that the accompanying statement, filed with a copy of this agreement, and declaring that such only of the notes as according to the terms of that agreement had become payable, had been paid, sufficiently defined the mortgagee’s interest in the mortgaged property, so far as relates to the remaining notes. But the mortgage was also given to indemnify the plaintiff against certain outstandiug liabilities of himself and Jimmerson. Those liabilities were some of them outstanding, and are still outstanding. Indeed, the plaintiff now claims and has recovered judgment directing the payment of one, and the reimbursement to himself of what he has paid on account of others of those liabilities, and yet, in the said statement, he does not suggest that he claims any interest in the property as security for any such liability. On the contrary, he says, in terms, that the “ amount of the unpaid notes constitutes the amount of my” (his) “interest in the property claimed by me” (him) “by virtue of the said mortgage.” He thus, in terms, defined his interest, so as in effect to inform all to whom the information might be useful, that whatever were the debts or liabilities originally secured by the mortgage, or mentioned in the agreement, of which a copy was annexed to the statement, his present interest consisted in the mortgage lien on the property to secure the unpaid notes. It is true that the copy of the agreement annexed, showed that the mortgage was originally given to secure the payment of other liabilities of the late firm of Jimmerson & Beers; but the plaintiff did not state nor suggest that any of those liabilities remained outstanding, and all the terms of the agreement are entirely consistent with the truth and accuracy of the statement, that his interest, at the time the statement was filed, was confined to those notes which were described in the agreement, and which, according to such agreement, had not become payable.

If, therefore, the plaintiff’s claim against the appellants, who were subsequent purchasers, depends upon the accuracy of the statement in question, we are constrained to say that in respect of any claim in the plaintiff to a lien upon the property as security for any amounts or liabilities not mentioned in the statement, the statute was not complied with, and the mortgage became inoperative. (2 Rev. Stat., 3d ed., 196, § 11 ; Laws of 1833, ch. 279, § 3.)

But it does not follow that the mortgage became wholly void for this reason, not even as against creditors or subsequent purchasers in good faith. The statute requires, that a true copy of the mortgage be filed, “together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof.” It is settled, that in this copy and statement, the mortgagee may not represent the amount as greater than it really is. (Ely v. Carnley, 3 E. D. Smith, 490, affirmed in the Court of Appeals, 19 N. Y. R., 496.) But we think that neither reason nor justice, nor any necessary construction of the statute, renders an understatement of the amount due fatal. The object of the statute is, to inform creditors, purchasers, &c., of the extent of the mortgagee’s claim under the mortgage, and thus to apprise them of the interest of the mortgagor which they may seek to levy upon, or give credit to, or acquire. If the mortgagee states his interest at a less amount than he might claim, parties designed to be protected by the statute are protected, and are protected in the precise mode contemplated by the statute, if the mortgagee be held to the terms of his statement; as against them he can never afterwards claim that any greater sum is due or secured by the mortgage than is mentioned, in terms or by intelligible reference, in his own statement. If the mortgagee chose voluntarily to relinquish his security as to a part of the sum secured, we think this Avould be an effectual mode of doing so, and that it Avould be quite consistent with the design and just construction of the statute; creditors and subsequent purchasers would have full protection.

So, if by mistake, or through misapprehension of what was necessary, he limits his claim oí interest under the mortgage to a less amount than is really due to him, the same result equally satisfies the statute and protects all third parties. As to them, he is bound by his statement.

It is suggested, that it was not necessary to repeat in the statement, when the copy of the mortgage was filed, that the mortgage still remained a security by way of indemnity for outstanding liabilities.

If the mortgagee had simply stated that his interest continued to be as expressed in the mortgage, except that the notes due to him which had become payable were paid, there would be no such embarrassment as now exists. He did not content himself with this. He undertook to state affirmatively, what constituted his interest for the future, and in no manner, intimates that he holds the mortgage as an indemnity, but excludes that idea by claiming it only as security for certain notes. This is not only consistent with the idea, that since the making of the mortgage, all other liabilities secured thereby had been paid off, but it distinctly imports that this is so. And, again, it is just as important that creditors and subsequent purchasers should be rightly informed whether the property still remains as security for such liabilities, as that they should know whether the debt due to the mortgagee, or any and what part of it, has been paid.

Unless, therefore, the want of a correct statement that • there were still liabilities outstanding, the payment of which was secured by the mortgage, is cured by some other fact or circumstance, then the amount recovered by the plaintiff out of the mortgaged property is too great. He should not have been allowed, as against the appellants, either the debt due to D. Willis, or the amount of taxes paid by him.

Ho such fact or circumstance is contained in the finding of facts by the Court at Special Term ; there the conclusion appears to proceed solely on the proposition that the statement as filed was sufficient. In the opinion of -the Judge it is stated that if the statement was not sufficient, the appellants cannot take advantage of the defect, because they had actual notice. Without questioning the proposition that the subsequent purchaser who can take advantage of such a defect in the refiling must be a purchaser in good faith, and that if he have actual notice both of the original mortgage and of the actual amount due, or at the time of his purchase secured thereby, he is not such a purchaser in good faith, there are two reasons why we think the appellants may take advantage of the defect in the present case. The first is that the Court at Special Term have not found that they had any knowledge of the actual amount for which the mortgage was held as security when they purchased; and although they admit in their answers knowledge that the plaintiff held a mortgage, they deny that they had any knowledge of the amount due thereon, and state they were informed that nothing was due.

Obviously it is not enough that they had notice of the existence of the mortgage, for the whole purpose and object of the refiling at the end of the year is that creditors and purchasers may be informed what is the interest of the mortgagee at the time, and the mortgage ceases to operate if that be not .done. The second reason is that the proofs do not warrant a finding that the appellants knew or had reason to suspect or believe that the statement filed in February, 1855, was not strictly true; it was not shown that they had any notice that any outstanding liabilities of Jimmerson & Beers, mentioned in the schedule annexed to the mortgage, were still outstanding and unsatisfied. On the contrary, the very notice publicly given by the plaintiff, produced in writing, which he says he read at the auction sale at which the appellant, Waterbury, purchased the property, states that he has a mortgage, aud that $5,243.50, with interest from February 1st, 1854, is unpaid thereon, all of which is due and collectible. This not only does not give notice that the mortgage is held also as an indemnity against other liabilities then outstanding, but it excludes any such idea.

But for this defect in the statement made on filing the copy of the mortgage, we should think there was no error in allowing the plaintiff’s lien and directing the payment of the amount due Willis, and reimbursing the amount paid for taxes of 1853 to the amount of $300, and all the interest which, under the laws regulating tfie collection of taxes, was chargeable thereon. The Court did, however, allow two sums, $251.73, and another tax which, with interest, amounted, when paid, to $181.45, but the original or principal amount of which was not proved. In the complaint the plaintiff only demanded the first sum, $251.73, with the interest, paid by him, amounting to $356.13, and had any objection been made he could not have been permitted to prove, under that complaint, any other sum. The proof was, however, received without objection; Still, this could not enlarge the scope of the mortgage itself. The taxes, payment whereof was secured, were set down in the schedule annexed to the mortgage at a specific sum, ($300,) and as against subsequent purchasers of the property not having notice of any mistake, this amount could not be enlarged by ¿proof that there were taxes which exceeded that amount. At most, $300 as the principal, and the interest which the plaintiff was required to pay thereon, and interest on the aggregate from the time he made the payment, was all that, as against such purchasers, the plaintiff was entitled to.

In regard to the alleged agreement by the plaintiff to take $2,500 in stock, it must suffice to say that we do not think the finding of the Court is against the weight of the evidence, but the contrary.

It was strenuously insisted upon by the appellants that the mortgage could not, as against subsequent purchasers, operate to bind property not owned by the mortgagors when it was given, but afterwards, in the course of their business, substituted for portions of the mortgaged property used up or disposed of; that the covenant in that respect is personal to the original mortgagors; and that the only new property substituted or brought within the terms of the mortgage as to substitution, was purchased by the appellants, after they became owners of the mortgaged property. Although the Judge, at Special Term, in the memorandum of opinion printed in the case, does consider the substituted property bound by the mortgage, neither his conclusions of law, nor the judgment of the Court, adjudged such property to be subject to the lien of the mortgage. All that is directed to be delivered to the receiver, and all that is to be sold, is the property now remaining, which was included originally in the mortgage. The exception, therefore, fails. On settling the judgment, and in stating the conclusions of law, the Oourt have followed the precise view now urged by the appellants upon us, and the claim to reverse the judgment on this ground (even if they are right) fails, because no such decision was made as they complain of.

Instead of charging the substituted property with the lien of the mortgage, the Court have charged upon the appellants the value of'the property, which was included in the mortgage, and which it is admitted they have consumed, sold, destroyed or disposed of. In this there is nothing inequitable.' The value of this portion, of the property is also agreed upon; and if what remains of the property should not produce sufficient to satisfy the debt due to the plaintiff, it is difficult to suggest a reason why they ought not to make it good.

This is the only personal liability cast upon them by the judgment. Even conceding that they took the property in hostility to the mortgage, not only not assuming to pay it, but denying that it was an existing lien, still they took, with notice of the mortgage, and had no right to deprive the plaintiff of his security by destroying or disposing of the property.

As to the appellants’ claim to an allowance, by way of counterclaim, founded on the fact that the plaintiff was a stockholder; we think that the question involved therein is not open to discussion. The case of Bailey v. Bancker, (3 Hill, 190,) must be deemed to dispose of the question. The appellant, Waterbury, being himself a stockholder, can only set up the claim in a proper action against the stockholders generally for a contribution.

And the alleged counterclaim, founded on the supposed subscription of the plaintiff, for $5,000 of stock in the Stage Company, was properly rejected: First, because the facts proved show that that subscription was abandoned; second, because no such counterclaim was set up in the answer; and this is fatal, since, to allow it, because some evidence of it was given, would not be to disregard amere variance, but would permit an entirely new and substantive cause of action in no wise alluded to in the answer to be introduced and sustained, (Crane v. Hardman, 4 E. D. Smith, 448 ; Storp v. Harbutt, Id., 464 ;) and third, because it is not a cause of action in favor of the appellants; but in favor of the Stage Company, which the Company have not claimed, and which they have not assigned to the appellants ; and the latter have not set up nor shown any grounds upon which they should be permitted to use it as a defense. (See Farge v. Halsey, 1 Bosw., 171 ; Peabody v. Bloomer, 6 Duer, 53 ; Boyd v. Foot et al., 5 Bosw., 110.) It is not alleged or proved that the Stage Company is insolvent, and that the relations of the parties are such that, for that reason, the appellants should be permitted to avail themselves of such a claim if it existed.

The judgment is, we think, for the reasons first above stated, erroneous, in so far as relates to the allowance, out of the proceeds of the mortgaged property, of the sum paid for taxes and the debt due Willis; and, as to the appellants, should be modified by abatement to that extent. This, however, does not deprive the plaintiff of his right to have the full amount from the Stage Company, who have not appealed.

If the plaintiff should consent to deduct, from the recovery from the appellants and the mortgaged property, the two items thus specified, leaving the judgment to stand for the full amount as to the other defendants, the modification should be made and the judgment as modified be affirmed without costs on the appeal.

If he do not so consent the judgment must be reversed, and a new trial ordered, with costs to abide the event.