text:
    Herman Huttemeier, Plaintiff and Respondent, v. Benjamin Albro, Defendant and Appellant.

    J. B. was the owner of several contiguous lots, fronting on a public street, running to the corner formed thereby with an intersecting street, and, also, of the contiguous lots in the rear, fronting on the cross street; and for 40 years prior to his death, he had used an alley-way, running from such cross street, along the rear of the first-named lots, as a means of access and egress from and to the rear of such lots, upon the rear of one of which was a small house, let from time to time, to various tenants, who used the alley-way.
    After the death of J. B. the premises continued to be so used for several years, and one of the lots was leased, by the heirs, for five years, and was described in the lease, as hounded northerly, in the rear, by an alley for the use of this lot in common with the lot adjoining This lease, by assignment, came to the plaintiff. Afterwards, during the term of the lease, partition was voluntarily made by such heirs, and in conveying the said lot to the one to whom it was allotted, it was described in the deed, as “ running to the southerly side of the alleyway, and thence southeasterly, along the said alley-way, 21 feet 10 inches,” and it was conveyed, “together with all and singular the appurtenances,” etc. The lot was thereafter, before the expiration of the lease, conveyed in the same termg by such grantee, to the plaintiff, the tenant in possession.
    After the expiration of the lease, the defendant, a grantee of other of the heirs, closed the alley by an erection on the line of the cross street.
    Held, in an action to compel the removal of the obstruction, and for damages,
    1. Ho easement was created, during the life of J. B., which would pass to the grantee of one of the lots by mere force of the word “ appurtenances” in the deed from the heirs-at-law, so as to give such grantee a right to use the alleyway. Ho one can be said to have an easement in his own land, and no right of way could exist, as such, so long as the title to the alley and the contiguous lots, was vested in fee in the same person.
    2. The conveyance made on the partition of the lots, describing one of them as running to the alley, and running along the alley, in connection with the actual use of such alley at that time, and for many years before, as a way of ingress and egress from and to such lot, are sufficient to show an intent to create the easement, and to confer the right of way on the grantee, who thereby acquires an easement in the alley, which, in turn, passes to his grantee.
    8. Where a lot is conveyed which has a front bounding on a public street, the grantee does not take “ a right of way by necessity,” through an alley lying at the rear of the lot, although there be on such rear a dwelling house, and the grantor has, for forty years, used the alley as a way of ingress and egress for his tenants in such house.
    (Before Duer, Ch J., and Woodruff, J.)
    Heard, Oct. 23d, 1857;

    decided, March 6th, 1858.
    This action is brought to compel the defendant to remove from an alley-way running along the rear of the plaintiff’s lot, No. 108 Division street, a- shed and other obstructions, erected by the defendant, at its outlet to Eldridge street, and to pay to the plaintiff damages for obstructing his use of such alley, as a passage for ingress and egress from and to the plaintiff’s lot.
    The defendant denied that the plaintiff had any right to use the alley, and set up title in himself in the alley in fee.
    The action was once tried in this court, and judgment was rendered for the plaintiff, but on appeal to the Court of Appeals, the facts proved were not deemed sufficient to establish a title to the alley or to the use thereof in the plaintiff, and a new trial was ordered.
    The case then came on for trial before Mr. Justice Bosworth without a jury. The facts proved appear by a condensed statement of his finding upon the evidence.
    The location of the plaintiff’s lot and of the alley, and also of the other lots bounding on the alley, is shown on a diagram as follows:—

      First. The lot known as No. 108 Division street, in the plaintiff’s complaint mentioned, together with lots 106, 110 and the alley-way, and also No. 8 Eldridge street, were owned by John Beekman for some forty years prior to and down to the time of his death, which occurred in December, 1844.
    He died intestate, and left him surviving, Mary Elizabeth, his widow, and six children, viz.: Catharine B. Fish, widow; Mary, wife of Wm. A. De Peyster; Jane, wife of Jacob H. Borrowe; Lydia, wife of Joseph Foulke; Wm. F. Beekman and John 0. Beekman, his only heirs-at-law.

      Second. In, the rear of said lot, No. 108 Division street, there was an alley-way, three feet .wide, extending from lot No. 110 Division street to Eldridge street, bounded on one side by lots numbered 110, 108, and 106 Division street, and on the other side by lot No. 8- Eldridge street. This alley-way was used by the tenants and occupants of 110 and 108. Division street and No. 8 Eldridge street, during the time said John Beekman owned said lots, and also after his death, until, in May, 1848, when it was closed by the defendant.
    While this alley-way was so used, there was a small wood tenement house on the rear of lot No. 108 Division street, the property of the tenant, the only access to and egress from which was through said alley-way, from and into Eldridge street.

      Third. By an indenture of lease, dated the 30th of April, 1845, executed by all the heirs of said John Beekman, deceased, as parties of the first part, and Ann Hunniford, widow, as party of the second part, the said parties of the first part demised to the said party of the second part, the said lot No. 108 Division street, for five years, from the first day of May next after its date. The said lease described the demised premises as bounded southerly, in the front, by Division street; northerly, in the rear, by an alley of three feet in width (for the use of- this lot in common with the other lot adjoining); easterly, on one side by lot No. 110; and westerly, on the other side, by lot No. 106 ; containing in breadth in front, on Division street, as the bevel runs, twenty-four feet seven inches; in the rear, along the alley aforesaid, twenty-one feet ten inches; and in length, on the easterly side, sixty-one feet; and on the westerly side seventy-five feet eight inches, be the same more or less, and contained the usual habendum, “ To have and to hold the said demised premises with the appurtenances,” etc.

      Fourth. The said Ann Hunniford, on the 13th of January, 1847, by an instrument in writing, signed by her and sealed with her seal, assigned the said lease and her interest by virtue thereof in the said demised premises to the plaintiff.

      Fifth. By a deed dated January 9th, 1847, and acknowledged the 11th and recorded the 14th of said January, the said widow of John Beekman, and all of his said heirs except Lydia Eoulke, conveyed to the said Lydia said lot 108 Division street, granting the premises conveyed in the following words of description :—
    “All that certain piece, parcel, or lot of ground situate and being in the Tenth Ward of the City of New York, on the northerly side of Division street, known as street number (108) one hundred and eight Division street, distant twenty-four feet and seven inches easterly from the easterly corner of Division and Eldridge streets, and running thence north-easterly in a straight line seventy-five feet and four inches to the southerly side of an alley-way three feet wide; thence south-easterly along the said alley-way twenty-one feet and ten inches; thence southwesterly in a straight line sixty-four feet and two inches to the said side of Division street; and thence westerly along the same twenty-four feet and seven inches, to the point or place of beginning. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.”

      Sixth. By a deed also dated January 9th, 1847, and acknowledged the 11th, and recorded the 14th of said January, the said widow of John Beekman, and all of his said heirs except the said Jane H. Borrowe, conveyed to the said Jane H. Borrowe said lot Eo. 106 Division street, bounding and describing it thus:—
    “ Beginning at the said easterly corner of Eldridge and Division streets, and running thence easterly along Division street twenty-four feet and seven inches; thence northeasterly, and parallel with the east side of Eldridge street seventy-five feet and four inches to the easterly side of an alley-way three feet wide; thence north-westerly along the same twenty-one feet and ten inches to the said side of Eldridge street, and thence south-westerly along the same eighty-six feet and six inches to the said easterly corner of Eldridge and Division streets, the place of beginning. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise Appertaining.”

      Seventh. By a deed also dated the 9th of January, 1847,'ac-knowledged the 11th, and recorded the 14th of said January, the said widow of John BeekmAn, deceased, and all the said heirs, except Mary De Peyster, conveyed the lot Eo. 110 Division street, and also the lot Eo. 8 Eldridge street, to John 0. Beekman, trustee, the material parts of the description of lot Eo. 110, being:—
    “Beginning at a point on the said side of Division street, distant forty-nine feét and two inches easterly from the easterly corner of Eldridge and Division streets, and running thence northeasterly and parallel with the easterly side of Eldridge street, sixty-seven feet two inches; thence southeasterly and at'right angles with the last-mentioned line, twenty-one feet two inches; thence south-westerly and parallel with said side of Eldridge street, fifty-six feet to the said northerly side of Division street; and thence westerly along the same twenty-four feet seven inches, to the point or place of beginning. Together,” etc.
    “ And as to lot No. 8, beginning at a point on the said side of Eldridge street, distant eighty-nine feet six.inches northeasterly from the easterly corner of Division and Eldridge streets, and running thence southeasterly on a line at right angles, or nearly so, with the said side of Eldridge street, sixty-five feet six inches; thence northeasterly and parallel, or nearly so, with the said side of Eldridge street twenty feet; thence northwesterly and at right angles, or nearly so, with the last-mentioned line sixty-five feet six inches, to the said side of Eldridge street; and thence southwesterly along the same twenty feet one inch to point or place of beginning. Together, etc.”

      Mghth. The said Borrowe and wife, on the 22d of June, 1847, mortgaged to John 0. Cheeseman the lot No. 106 Division street, to secure the payment of the sum of $3500, by precisely the same words and description as are contained in the deed of the same lot from the widow and heirs of said John Beekman, deceased, to the said Jane H. Borrowe.

      Ninth. The said Jacob H. Borrowe and his said wife, by a deed, dated the 25th of February, 1848, and acknowledged and recorded on the first of March, 1848, conveyed to the defendant Benjamin Albro, subject to the said mortgage, the lot No. 106 Division street, the material parts of the description being:— “ Beginning at the said easterly corner of Eldridge and Division streets, and running thence easterly along Division street twenty-four feet and seven .inches, thence northeasterly and parallel with the east side of Eldridge street seventy-five feet and four inches to an alley-way three feet wide, thence northwesterly along the same twenty-one feet and ten inches to the said side of Eldridge street, and thence southwesterly along the same eighty-six feet and six inches to the said easterly corner of Eldridge and Di-' vision streets, the place of beginning, subject, nevertheless, to the above mortgage, etc.”

      Tenth. By a deed also dated the 25th of February, 1848, and acknowledged and recorded on the 1st of March, 1848, the said Borrowe and wife “remised, released and quit-claimed” to the defendant Albro, all their right, title and interest in the said alley-way, which is described in the instrument as follows:—

      “ All the right, title, and interest of the said parties of the first part, of, in, and to a certain alley-way, described in a certain indenture, bearing date the ninth day of January, eighteen hundred and forty-seven, between Mary Elizabeth Hoad Beekman, of the said city, widow, of the first part, William F. Beekman and Catharine his wife of the second part, William A. De Peyster and Mary his wife of the third part, John C. Beekman. trustee of Mary De Peyster of the fourth part, John C. Beekman of the fifth part, Catharine B. Fish of the sixth part, Joseph Foulke, Jr., and Lydia his wife of the seventh part, and the said Jane Borrowe, wife of Jacob H. Borrowe, of the eighth part, and recorded in the office of the Register of the City and County of Hew York, in Liber 485 of Conveyances, page 274, January 14th, 1847, as 1 an alley-way three feet wide,’ and adjoining certain property on the easterly corner of Eldridge and Division streets, granted and conveyed by the said Jacob H. Borrowe and Jane his wife to the said Benjamin Albro, by deed bearing date herewith.”
    Said Foulke and wife, by a deed dated the 2d of March, 1848, and acknowledged and recorded on the 11th of said March, , conveyed to the plaintiff the said lot, Ho. 108 Division street, the premises thereby conveyed being described in such deed, in the same words as in the aforesaid conveyance thereof, to the said Lydia Foulke.
    In May, 1848, the defendant tore down the old building which stood on Ho. 106 Division street, and erected a new building thereon, and finished the same in the course of that season. He closed up the entrance to the alley-way, on Eldridge street, in May, 1848, and has kept the same closed since.
    Soon after the same was so closed, the occupants of the building on the rear of Ho. 108 Division street quit the same.
    While the defendant was rebuilding on the lot 106 Division street, the plaintiff made material alterations in the building in the rear of 108 Division street, and fitted it up for the manufacturing of candies, etc., and made an entrance to it from Division street.
    The uses for which he fitted and to which he applied the said rear building, made its use as valuable to him as the renting of it had previously been.
    The plaintiff made no complaint to the defendant at the time, on account of the closing of the alley-way, nor did he make any complaint of, or objection to such conduct, until at or about the time this action was commenced.
    The building on the rear of 108 Division street rented, prior to the closing of the alley-way, at the rate of about $125 per annum.
    By the closing of the alley-way the plaintiff was deprived of the use of this building, in the manner it had been previously used. He lost the use of it until he had altered it, and converted it to other uses.
    The damage sustained by the defendant-, if he is entitled to recover in this action, is seventy-five dollars, with interest thereon, from the commencement of this action, to this date, amounting, in all, to the sum of one hundred and six dollars and fifty-nine cents.
    On the foregoing facts, the Court found the following conclusions of law:—
    First.—The deed of the 9th of January, 1847, to Lydia Eoulke, from the other heirs and the widow of John Beekman, deceased, of lot Ho. 108 Division street, conveyed as an incident and appurtenance to the lot itself, a right to the use of the alley-way, as it had been, and was then used.
    Second.—The deed from Lydia Foulke and her husband to the plaintiff, of the same lot, conveyed to the plaintiff the same right.
    Third.—The plaintiff is entitled to a judgment against the de fendant for the said sum of one hundred and six dollars and fifty-nine cents, together with the costs of this action, and to a further judgment that the defendant remove from said alley-way all obstructions to the free use thereof, as it had been used prior to the 2d of March, 1848; and that he refrain from interfering or inter-meddling with the rights of the plaintiff to the free and unobstructed use thereof, in the manner and for the purposes for which it had been used prior to the time last aforesaid.
    The defendant duly excepted to the conclusions of law and the final decision.
    Judgment was entered for the plaintiff, in conformity with the decision ; and the defendant appealed to the General Term.

      Waldo Hutchins, for the defendant (appellant).
    I. The Judge erred in finding, as a conclusion of law, that the deed of the 9th of January, 1847, to Lydia Foulke, from the other heirs and the widow of John Beekman, deceased, of lot No. 108 Division street, conveyed as an incident and appurtenance to the lot itself a right to the use of the alley-way, as it had been and was then used. 1. No such right existed as a way 'of necessity. (Opinion of Selden and Johnson, Court of Appeals.) Neither did it exist by prescription founded on an adverse use of more than twenty years. 2. To warrant a presumption of the grant of an easement, the use of twenty years must have been continuous and adverse. (Colvin v. Burnett, 17 Wend. 564; Hart v. Vose, 19 Wend. 365.) 3. Neither did it exist by grant. (Opinion Judge Johnson, Court of Appeals.)
    II. The right could not have existed while the title to the lot and the alley-way was vested in the same person. (Coke Litt. 114, B.; Cooper v. Barber, 3 Taunt. R. 99 ; 2 Black, Comm. Ch. 11; Grant v. Chase, 17 Mass. 443 ; Opinions of Justices Selden- & Johnson, Court of Appeals; Jackson ex dem Yates v. Hathaway, 15 Johns. R. 447.)
    III. To entitle the plaintiff to a recovery he must show the creation of the easement upon some severance of, the ownership of the two tenements. (Opinion of Judge Selden.)
    TV". No existence of an easement in this case has been established. The deed to Mrs. Foujke describes the lot bounding it upon one -side “ along an alley-way,” while in the conveyances of lot No. 110 Division street and No. 8 Eldridge street, the tenants of all of which, together with those of No. 108, had had the use of the alley-way during the lifetime of John Beekman, the alleyway is not referred to.
    "V. General words,, such as “ appertaining,” “ belonging,” etc., are not sufficient to pass the right of way upon a severance of the tenements. (Whalley v. Thompson, 1 Bos. & P. 371; Kooystra v. Lucas, 5 B. & Ald. 830 ; Jackson v. Hathaway, 15 Johns. 447; Staple v. Hayden, 6 Mod. 1; Grant v. Chase, 17 Mass. 442.)

      H M. Ruggles, for the plaintiff (respondent).

      I. If the heirs of John. Beekman had conveyed the plaintiff’s lot, with its appurtenances, to a third person, the right to the continued use of the alley would have passed to the grantee. (Staple v. Heyden, 6 Mod. R. 1, 4; United States v. Appleton, 1 Sumnor, 492; Huttemeier v. Albro, Court of Appeals.)
    II. The deed from the other heirs and the widow of JohnBeek man to Mrs. Fonlke, had the same effect; and the conveyance from her and her husband to the plaintiff, gives him the same right, and entitles him to the unobstructed use of the alley.
    III. The judgment should be affirmed.

       Affirmed in the Court of Appeals, October, 1858. 18 N. T. R. 48.

   By the Court. Woodruff, J.

It is possible that the views expressed in the opinion given by Mr. Justice Selden, when this ease was before the Court of Appeals, and which are especially applicable to the case as now before us, might have been withheld, and yet the same judgment of reversal have been pronounced. In this sense a portion of his opinion may be deemed obiter.

But that opinion was written with a view to the new trial which was ordered, and was evidently intended as a guide to this court in the further conduct of the cause. And bearing this in mind, we ought, perhaps, to presume that the observations he made had the sanction of the other members of the court, although not specifically adverted to by Mr.. Justice Johnson in his opinion.

If, therefore, we did not concur in those observations, we should hesitate very much before coming to a conclusion, based upon opinions opposed to that which may properly be regarded as our guide to a new trial, and judgment.

But upon the whole case we concur with Mr. Justice Selden in the result at which that portion of the opinion to which we refer would have led him, had the case, as now developed, been before that .court.

We observe, however, preliminarily, that the Court of Appeals must be deemed to have decided, that the plaintiff herein has no right of way, by necessity, over or through the alley, the obstruction of which he complains of. So far as that question is involved, the case has not been altered in any material particular. Nor has he a right of way founded in prescription, nor on an adverse user. Nor could the right of way exist as an easement while the title to the alley, and the title to the several contiguous lots, was vested in the same person. No one can be said to have an easement in his own land. And where an easement has existed, it ceases when the title to the easement and the title to the land are united in the same person.

If, therefore, the easement exists, and is vested in the plaintiff, as the owner of one of the lots adjacent to the alley, it must have been created in some manner, subsequent to the death of John Beekman, who died seized of the whole of the premises in fee. But in determining whether or not the acts of John Beekman and his heirs were such that the conveyances by the heirs would operate, as between themselves and in favor of subsequent grantees, to create the easement and pass a right of way as an appurtenant to the several lots bounded thereon, the fact is of great importance, that the alley had been used as a way of ingress and egress to and from the several lots, for more than forty years prior to the death of John Beekman, in 1844, and continued to be so used until, and after the division of the property among his heirs, and thereafter, until the defendant, in 1848, made the obstruction which is the cause of the present action. And upon the rear of the lot now of the present plaintiff there was, during all this period, a dwelling house, the property of the tenant, the only access to and egress from which was through said alley-way from and into the public street, (Eldridge street) and the alley was used for such access and egress by the tenants and occupants of such house.

The opinion of Mr. Justice Selden, in the Court of Appeals, is explicit in regard to the effect and operation of such facts as these, followed by conveyances apt in form to transfer the right to a continuance of such a use.

He says:—“ The owner of several tenements may, of course, make such a disposition of their respective properties as he pleases. He may take, from either, any one of its qualities, or any use of which it is susceptible, and annex it to another; so that such quality or use shall become part and parcel of the latter, thus rendering the one tenement, pro tanto, subservient to the other; and there is no doubt, that where an owner has chosen thus to make an artificial distribution of the natural properties of" two tenements, making use of the one as subservient to the other —if, while this use and his ownership of both • tenements continues, he sell and convey the dominant tenement, with its appurtenances, there being, at the time, open and visible marks of such use, an easement, corresponding to the use, will be created, and will pass by the deed as an appurtenance. In this case, there was abundant proof of the use of the alley, in connection with the plaintiff’s lot, for many years, with the consent of the owner of both tenements, and an apparent continuance of this use, up to the time of the conveyance by Foulke and wife to the plaintiff, accompanied by the necessary outward and visible marks of such use. But it does not appear that Foulke and wife were the owners of the alley when they executed the deed. The ownership by them of both tenements, was, of course, essential to the

creation of the easement as an appurtenance, at that time.....

It may, however, have been created upon some previous severance of the ownership of the two tenements, as upon the partition of the premises between the heirs of John Beekman, in which ease it would have passed, by the deed of Foulke and wife, as appurtenant to the lot.......As against Foulke and wife, the

plaintiff has shown, I think, a clear right to the use of the alley; but, as against the other heirs of Beekman, or their grantees, he has shown none at all. If either the title to the alley itself, or a right to its use, in connection with lot 108, was conveyed to Foulke and wife by the partition deed, then such right passed as an appurtenance by the deed to the plaintiff.”

The application of these views to the case, as exhibited on the second trial, is quite obvious. The, title to the alley and the several contiguous lots, was in the heirs of John Beekman; their deed to Mrs. Foulke is now produced, and is in the very words of the deed afterwards executed by Foulke and wife to the plaintiff. The latter deed, in connection with the previous user, and the continued outward and visible marks of such use, is, in the opinion quoted, deemed sufficient to have vested in the plaintiff the right of way, had Foulke and wife then owned both the alley and the premises described.

By the same rule, the conveyance by the heirs, who did own both, must, in connection with the same extrinsic facts, be deemed to vest in Mrs. Foulke the right to the use of the alley, as an appurtenant to the premises granted; and the same, therefore, passed to the plaintiff, by the conveyance of the latter to him.

We are not inclined to rest this view of the effect of the deed to Eoulke and wife, upon the mere force of the word “ appurtenances,” in that deed. The right of way did not exist, as an easement, so long as the title to the lot (108) and the alley were both vested in the heirs of Beekman; and if the alley was not mentioned or referred to in the deed, in any manner other than by the word “appurtenances,” we should deem it at least doubtful whether the Court of Appeals intended to hold, that the previous .use of the alley had so detached it from the other lots, or attached it to the plaintiff’s lot, that it would pass by the mere force of that term. (1 Bos. & Pul. 371; 5 Barn. & Aid. 830; 1 Taunt. 206.)

But the conveyance to Eoulke and wife, describes the premises as'running “along the said alley-way.”

In Herring v. Fisher, (1 Sand. S. C. R. 344,) such terms were held to be sufficient to convey the fee to the centre of the road; and it was also held, that even if the point whence the boundary run along the road, was described as “ at the side of the road,” (as, in the case before us, the precise line is described as running to the easterly side of the alley,) the same construction would prevail. And see Badeau v. Mead, & Holmes, (14 Barb. 328;) and also, Sizer, et ux, v. Devereux, (16 Barb. 160,) and cases cited in these cases, respectively. (Smiles v. Hastings, 24 Barb. 44.)

It is sufficient for the purposes of this case, that, by the deed from the heirs of Beekman, Eoulke and wife obtained the right to use the alley, as such.

The judgment should be affirmed.


source: Caselaw Access Project

author: By the Court. Pierrefoht, J. Woodruff, J.

license: Public Domain

text:
    Garrett D. Clark, Plaintiff and Appellant, v. William H. Griffith and Levi Decker, Defendants and Respondents.
    1. The defendants, on the 26th of August, 1858, sold to D. <fc F. four billiard tables, for $1100, taking ten notes, of $100 each, at 2, 3, 4, 5, 6, T, 8, 9, 10 and 11 months, and a note made by one Clark, and a mortgage of the four tables, to secure the payment of the notes made by D. & F., (the mortgage providing, that on default to pay either of those notes, all the notes should be due, and the mortgage might be foreclosed;) and agreed, in writing, that, “ after $300 has been paid of said notes,” to “ give a receipt in full for one table, and so continue until all are paid." On the 14th of January, 1856, the defendants signed and delivered to D. & F., a paper, which states, that they had received from D. & F., $2Í6, “ for one billiard table; said table being one of the four tables included in a mortgage given by said D. & F.”
    2. In March, 1856, D. & F., not having paid more, the defendants foreclosed the mortgage, sold and, at the sale, bought all of the tables; and, on the 8th of September, 1856, the plaintiff, who had succeeded to the rights of D. & F., demanded of the defendants one of the four tables, ’(who refused to deliver it); and thereupon brought an action of trover to recover its value.
    8. Held, that on such a state of facts, the plaintiff could not maintain such an action ; and that his complaint was rightly dismissed at the trial.
    4, An acceptance of the purchase-price of one table, does not bind the mortgagee, (holding a mortgage for the purchase-money of four tables,) to give up or release either table, until the whole is paid; or, if he have agreed to release one on payment of $300, then, until the whole $300 is paid.
    5. When a mortgagee has agreed to release one of several chattels mortgaged, on payment of a specified portion of the debt, an agreement made by him, on payment of a lesser portion of the debt, (the sum paid having, in fact, become payable,) to release one of the mortgaged chattels, is without consideration, and void.
    (Before Hoffman, Woodruff and Pierrepont, J. J.)
    Heard, Feb. 2d;
    decided, March 6th, 1858.
    This action comes before the Court on two appeals taken by the plaintiff, one being from an order denying a motion made by him for a new trial, and the other being from a judgment, upon an order, dismissing his complaint, made at the trial. It was tried on the 22d of June, 1857, before Mr. Justice Woodruff and a jury.
    The complaint states, as a cause of action, “ that about the 1st of March, 1856, a certain billiard-table and four ivory balls, and a lot of cues and counters belonging thereto, the property of the plaintiff, and to the possession of which the plaintiff is entitled, of the value of $275, came into the possession of the defendants. That on or about the 8th of September, 1856, the plaintiff being then the owner, and entitled to the possession of the said property, demanded the same of the defendants, who refused to deliver the same to the plaintiff, but have wrongfully converted and disposed of the same to their own use, to the plaintiff’s damage $300. Wherefore plaintiff demands judgment, that he recover of the defendants $300 damage, besides costs.”
    The answer denies that the billiard-table, etc., was, on the 1st of March, 1856, the plaintiff’s property, or that he then was, or since has been, entitled to the possession thereof, or that they have wrongfully converted and disposed of the same to their own use, or that it was worth $275, or that plaintiff has sustained $300, or any damage.
    It sets up a sale by them, on the 25th of August, 1855, to John E. Dean and Thaddeus Gr. Finnegan, of the property mentioned in the complaint, and of three other billiard-tables and their appurtenances, and that Dean and Finnegan, towards the payment therefor, delivered ten promissory notes of that date, of $100 each, to the defendants, made by Dean and endorsed by Finnegan, at one, two, three, four, five, six, seven, eight, nine, ten, and eleven months from their date, and to secure the payment thereof, at the same time executed and delivered a chattel mortgage of the said four billiard tables and appurtenances.
    That the mortgage provided, that on a default to pay either note, all should become due, and the mortgagees might take and sell the property. That said mortgage was duly filed, stating the time and place. That on the 1st of March, 1856, Dean and Finnegan had failed to pay three of the notes, which matured before that day, and thereupon the defendants elected to consider all the notes due, and took and duly sold the property under the mortgage, for the best price which could be obtained therefor.
    The case, containing the proceedings at the trial, is in these words, that is to say:—
    “ It was proved on the trial that on the 25th of August, 1855, the defendants sold and delivered to John E. Dean and Thaddeus Gr. Finnegan, keepers of a billiard saloon, at 598 Broadway, New York, four billiard-tables, with the balls, cues and maces appertaining thereto, and on the sale, executed and delivered to Dean & Finnegan a bill of sale, in the words following:—
    ‘New York, August 29th, 1855.
    Messrs. Dean & Finnegan
    Bought of Griffith & Decker,
    Four billiard tables and fixtures, . . . $1100.00
    ‘ Received payment by ten notes, made by John Dean, endorsed by T. G. Finnegan, and one note made by G. D. Clark, payable to his own order; and endorsed by J. E. Dean and T. G. Finnegan.
    Griffith & Decker.’

      1 After three hundred dollars has been paid of said notes, then we, Griffith & Decker, are to give a receipt in full for one table, and so continue until all paid. Griffith & Decker.’
    And at the same time Dean & Finnegan executed and delivered to the defendants the notes therein mentioned, and a chattel mortgage, dated August 25th, 1855, and executed under the respective hands and seáis of said Dean & Finnegan, (and filed on the 31st day of August, 1855, as required by Statute,) to secure payment of the ten notes described in said bill of sale, of $100 each, made by John E. Dean, and endorsed by Thaddeus G. Finnegan, upon the billiard-tables, balls, cues, etc., and other property; the mortgage was in the usual form, and conditioned to pay the said ten notes, and if any one or more of the said ten notes were unpaid, the whole of them should become due at the election of the defendants. On the 7th of September, 1855, Dean & Finnegan executed and delivered to the plaintiff a chattel mortgage (in the usual form, also duly filed the same day, as required by law,) upon the same property covered by the mortgage to the defendants, conditioned to pay the plaintiff one thousand dollars on or before the 7th day of September, 1856, and was expressed to be subject to Dean & Finnegan’s mortgage to the defendants.
    In both mortgages was a clause that until default in the condition, Dean & Finnegan should remain in possession of the property mortgaged, and it appeared that they did remain in possession, at Ho. 598 Broadway, in the City of Hew York, from the date of the first mortgage until the 14th day of March, 1856.
    It was also proved that Dean & Finnegan paid the first two of the notes mentioned in the bill of sale and mortgages, and that the note of G. D. Clark therein mentioned was also paid, and that therefor the defendant executed and delivered to Dean & Finnegan, on the day of its date, the following paper, viz.:—
    “ $275.00 Hew York, Jan’y 14,1856. .
    Received from Dean & Finnegan, two hundred and seventy-five dollars, for one billiard table; said table being one of the four tables included in a mortgage given by said Dean & Finnegan.
    Griffith & Decker.”

      But at the time this paper was given, or at any other time, no particular table of the four was selected or identified.
    It was further proved that after the last paper was given, as above stated, and on the 18th day of February, 1856, the plaintiff purchased all the right, title, and interest of Dean in the four billiard-tables, cues, maces, etc., which right, title, and interest was at that time sold by the Sheriff of the City and County of New York, under an execution issued and delivered to him upon a judgment in this Court against Dean and one Deagle, in favor of the plaintiff in this action, for $637.97; docketed in the same county, the 6th day of February, 1856. And the execution was issued to the Sheriff on the 6th day of February, 1856. And in the month of April, 1856, Finnegan assigned to the plaintiff all his right, title, and interest of, in and to the same.billiard-tables, cues, maces, etc.
    On the 14th day of March, 1856, others of the notes being past due, the defendants, under their mortgage elected to consider the whole amount due, and as stated in their answer, seized and sold all the four billiard-tables, cues, maces, etc., which were at the sale bought in for the defendants, and came into their possession.
    The complaint alleges that on the 8th day of September, 1856, (after the plaintiff’s mortgage became due,) the plaintiff demanded •of the defendants one of the billiard-tables, cues, maces, etc., and that the defendants refused to deliver the same to him, which is not denied in the answer.
    This action was commenced on the 15th day of September, 1856.
    The Court, after the foregoing facts were proved, dismissed the complaint on the motion of the defendants’ counsel, and the plaintiff excepted.
    On this case, the plaintiff moved at Special Term, before Mr. Justice Hoffman, on the 5th of October, 1857, for a new trial, which motion was denied. On the 19th of October, 1857, judgment was entered in favor of the defendants, and from that judgment, and from the order of the 5th of October, the plaintiff appealed to the General Term.

      A. B. JDyeit, for plaintiff, the appellant,

      Argued, among other propositions, the following:—
    I. The bill of sale from defendant to Dean & Finnegan passed the title of the four billiard-tables to them. The simultaneous mortgage by Dean & Finnegan to the defendants transferred the title again to the defendants, subject only to be defeated by the performance of the condition of the mortgage. The agreement at the foot of the bill of sale, was a part of the transaction, and all read together; the only effect that can be given to it, is an agreement to release each table from the mortgage as paid for, until all are paid for and released.—{Eagers v. Kneeland, 13 Wendell, 114.) The receipt operated as a discharge of one of the billiard-tables from the mortgage; and thereupon Clark, both as assignee of the rights of Dean & Finnegan, and as mortgagee in his own right, became entitled to it.'
    II. The receipt was given in performance of an agreement, and the defendants cannot avail themselves of a defective performance on their part, to deprive us of the billiard-table, for which they have been paid.
    III. It is of no consequence, that no table was selected when the table was released from the mortgage. It must be remembered that Clark sues as the assignee of Dean & Finnegan’s rights, as well as in his own right as mortgagee. 1. The vendee had the right of selection at any time, and was deprived of the exercise of it by the wrongful act of the defendants, of which they cannot avail themselves. The price had been paid, and the table delivered, because the four tables all had previously been delivered to Dean & Finnegan, and were then in their possession. There was nothing to be done to complete the transaction, not even delivery, and the property passed to Clark. (Olyphant v. Baker, 5 Denio, 379; Benedict v. Field, 4 Duer, 158.) 3. There being no selection of any table at the time of the release of one of them, and Dean & Finnegan being in possession at that time, they had a right to retain possession of all four tables, until either the defendants made the selection, or called on Dean & Finnegan to make it. The defendants having taken and converted all the tables without any such selection, Clark, as assignee of the rights of Dean & Finnegan, was entitled to the possession of, and might have sued for all four tables. He might therefore properly sue for one, to the possession of which he was entitled. This was also sufficient to support the allegation of property. Again, if it was uncertain which table was released, it was equally uncertain which three remained covered by the mortgage, and the defendants thus by their own act, and neglect to select a table, confused their remedy, and rendered their mortgage so uncertain as to be incapable of enforcement, and for that reason void, and they, therefore, had no right to take any of the tables—at least before making a selection.
    IV. By the release of one of the four tables without designation, Dean & Finnegan, (and Clark, by assignment from them,) became tenants in common with the defendants, in the- four tables; and by selling the whole, the defendants became liable in trover (for a conversion of the property,) to the extent of the interest of the tenant in common. (Heyl v. Burling, 1 Caines’ R. 14; Selden v. Hickock, 2 Caines’ R. 166; Wilson v. Reed, 3 Johns. R. 175; White v. Osborn, 21 Wendell, 72; Hyde v. Stone, 9 Cowen, 230 ; Sheldon v. Skinner, 3 Wendell, 525 ; 1st Chitty’s Pleadings, page 147, etc.)
    V. The defendants, by seizing and selling the four tables, so mixed up the plaintiff’s property with theirs, that they are liable in trover, even if they mixed the property by common consent. (Nowlen v. Colt, 6 Hill, 461.)
    VI. By seizing the four tables, the defendants were trespassers as to all the tables, and we had a right to waive the tort as to three, and sue for one of them.
    VII. If there be any technical difficulty about maintaining what formerly was trover, or trespass upon the complaint, the answer of the defendant sets up their defence fully, and all the facts were proved on the trial without objection. It is very obvious that, before the Code, we might have recovered the value of one billiard-table, (which we sue for,) in a special action in the case at law, or by a bill in equity, if we had no remedy at law. We certainly had a right to call upon the defendants to make a selection or permit us to do so, and to deliver us the selected table, and upon failure to do either, they were liable to us for the value of one of the tables. Our demand of one of the tables is the same in effect, and our complaint is literally true. The theory of the Code evidently is, that where all the facts are before the Court, if upon those facts the plaintiff, in any form of action at law or in equity, would be entitled to relief, that he shall have it, irrespective of the form of the pleadings. If it is necessary, the Court should conform the complaint to the facts proved, or amend the complaint.
    VIII. The nonsuit should be set aside, and a new trial granted.

      P. T. Woodbury, for respondents (the defendants).
    I. The receipts of August 29th, 1855, and January 14th, 1856, do not show an agreement, that as the tables were paid for they were to be released from the lien of the mortgage.
    II. The receipt of January 14th, 1856, did not operate as a release of any particular one of the four tables from the lien of the mortgage, or as a transfer of the interest of defendants therein. 1. No particular one of the tables was ever selected or identified, either in the receipt or otherwise, as the one to be released, or as the one referred to in the receipt. There was, therefore, no evidence that the table demanded or sued for was the one released or referred to in the receipt. 2. The receipt was not under seal, and could not, therefore, operate as a release from the lien of the mortgage, which was under seal. (Frink v. Green, 5 Barbour Sup. Ct. R. 455; Delacroix v. Bulkley, 13 Wend. 71.) 3. The interest of the defendants was yet undivested, because the identification of a particular table to be transferred, was not yet made or attempted. So long as any thing remained to be done to the thing to be transferred, to identify it or discriminate it from others, no title passed. (1 Parsons on Contracts, 441.)
    III. The demand, by the plaintiff, of a table, as admitted in the pleadings, did not operate as an identification or selection of any one of the tables as the one referred to in the receipt. 1. The question, which of the tables should be considered as the one to be released from the mortgage, or paid for in full, was to be settled by the concurrence of both purchaser and vendor. A mere demand of one particular table, by Dean & Finnegan, or their assignee, would not constitute such an identification. 2. There is no evidence that Dean & Finnegan, or the plaintiff, as their assignee, ever attempted to exercise this right, or ever called upon the defendants to concur with them in any such identification. 3. The proof is positive, that no such identification was ever effected. 4. Even if the demand is conceded to have been of one of the tables covered by the mortgage to defendants, and to have operated as an identification or selection of one which the plaintiff was entitled to have released, it was made too late, and after the defendants had foreclosed their mortgage and exercised the right, which they had at the time of such foreclosure, to sell all the tables. The foreclosure took place March 14th, 1856, and the demand was made September 8th, 1856.
   By the Court. Pierrefoht, J.

The plaintiff having rested his case, upon proving the facts above stated, the Judge dismissed the complaint; and we are called upon to say whether he committed an error.

We think that upon payment of $300 by Dean & Finnegan, they were entitled to one of the tables discharged from the lien of the mortgage, and that they might have compelled a selection.

No claim was made for the delivery of any table until six months after they had all been sold under the mortgage; and not until more than six months after the plaintiff had acquired whatever rights he now has; and no one of the four has ever been selected, or in any manner identified as the one claimed by the plaintiff.

The mortgage covered the four tables, and when purchased it was as much a lien upon each as upon any one of the four, and a sale under the foreclosure gave to the bona fide purchaser a title to each of the four tables. The defendant cannot be said to have wrongfully converted the property to his useand as the proofs now stand, the plaintiff is not entitled to the possession of any particular one of these tables any more than to each one of them ; and as it is clear, that he is not entitled to each, and as he has shown no selection or claim to any particular one, we think the complaint was properly dismissed.

The Court are now asked, at General Term, to entertain an original motion to amend the complaint, and so to amend it as to render a new trial necessary, and to reverse the judgment for errors which do not now exist, and which errors are proposed to be created by the amendments.

We doubt any such jurisdiction in the Court, and we should be slow to exercise any such powers if clearly possessed.

No motion to amend was made below, and it.is not proper for a Judge, on a trial, to volunteer and make amendments not moved" by either party. (Loyd v. Fox, 1 E. D. Smith, 101; Brown v. Colie, 1 E. D. Smith, 265.) The plaintiff is not without remedy, if he brings a proper action sustained by sufficient proofs; but with no other evidence than this case presents, he must fail in a simple action for the conversion of personal property.

The judgment must be affirmed with costs.

Woodruff, J.

The mortgage executed by Dean & Finnegan to the plaintiff, on the 7th of September, 1855, being in terms subject to the prior mortgage given to the defendants, the plaintiff knew, when he purchased the interest of Dean, at the sale then made of it by the Sheriff, and also when, in the month of April, 1856, he took from Finnegan an assignment of his interest, that the defendants held a mortgage of the four tables, which was the first and a valid lien upon the property.

His purchase did not impair the rights -of the defendants as mortgagees. (Hull v. Carnley, 1 Kern. 501; 17 N. Y. Rep. 202; Manning v. Monaghan, 1 Bosw. R. p. 467, note.)

The plaintiff’s rights, on the 8th of September, 1856, when he “ demanded of the defendants one of the billiard-tables, cues, maces,” etc., were the same as the rights of Dean & Finnegan would have been had they made the same demand,- not having executed a second mortgage, and their interest in the tables not having been sold by the Sheriff, or otherwise, to any one.

What, then, is the true construction of the instruments executed by the parties?

Dean & Finnegan, upon the purchase of the billiard tables, had executed and delivered to the plaintiff a mortgage to secure the payment of ten notes of Dean, endorsed by Finnegan, of $100 each, parcel of the purchase-money.

The whole purchase-money, for the four tables, was $1100, or $275 for each table. By the terms and legal effect of this mortgage, the defendants acquired a title to the tables, as security for the whole sum of $1000—i. e., for the payment of all of the notes given therefor by Dean, endorsed by Finnegan, and of each of such notes; and they were not, by the tenor of the mortgage, bound to relinquish their lien upon any of the tables, until all of the notes were paid.

But the memorandum, signed by the defendants at the foot of the bill of sale, is an agreement to give a receipt in full for one table, after $800 has been paid.

Giving to this agreement the construction claimed by the plaintiff’s counsel—and perhaps that is most in accordance with the intention of the parties—it was one of the terms of the purchase and of the mortgage, that when $300 was paid by the purchasers, the' defendants were to release one of the tables from the mortgage, and the purchasers, thereafter, to hold one table as their own absolute property.

The sale having been made at $275 for each table, and $300 being paid, the defendants would thus receive not only payment in full for the table so to be released, but would have $25 towards payment for the other three; and when a further $300 was paid, they would have $50 towards payment for the remaining two, and so on. Their relative security would thus increase, as the tables were successively released. Such an arrangement was reasonable, and may, taking both instruments together, be treated as showing the whole intent of the parties.

The defendants could not, therefore, be required to give up any table until $300 was paid; and, until $300 was paid, they could retain their lien, and, in case of any default of payment, could foreclose and sell the four tables.

On the 14th of January, 1855, Dean & Finnegan paid to the defendants $275.

Even if it be conceded, that the payment of $300 would have the effect to discharge one table from the mortgage lien without any act of release by the defendants, in performance of their agreement, it is quite certain that payment of $275 would not ■per se, have that effect, nor would it entitle Dean & Finnegan to have one of the tables designated as being so discharged. The amount had not been paid, which was required to entitle them to have one of the tables released, under the most favorable construction of the meaning and effect of the agreement of the 29th August, appended to the bill of sale.

It is claimed by the plaintiff, that the receipt given on the 14th of January, 1855, operated to discharge one table, so as to entitle him to maintain this action therefor. That paper, signed by the defendants, acknowledges that they have “received from Dean & Finnegan $275, for one billiard-table, said table being one of those included in the mortgage,” etc.

But this paper by no means necessarily operated to release any table from the mortgage. Had not the agreement of August 29th, 1854, been given, binding the defendants to release on the payment of a part of the purchase money, the payment for one, or two, or three of the tables would not have released them; they would still be held, under the mortgage, until the fourth was also paid for; and, under that agreement, the paper in question could have no greater effect, unless the whole $300 was paid.

It was literally true, that on the 14th of January, the receipt of $275 was payment for one table; it was exactly the price at which it was sold, and that is all which this paper necessarily acknowledges.

It does not show an intent to alter or vary the conditions upon which, by the existing agreements, Dean & Finnegan were to have one of the tables released.

Indeed, the terms of this paper are susceptible of a still more restricted construction, viz.: that the money was received “ on account of” one billiard-table; it is not declared to be “in full for one table,” as was provided in the agreement of August 29th; but “ for,” i. e., towards, on account of, one table, or in part payment of the amount, upon payment of which Dean & Finnegan will be entitled to a release of one table.

But, in either aspect of the meaning of its terms, in this respect, it was not a compliance with the terms, on which alone one table was to be released. Those terms required the payment of $300. The defendants were not bound to release the table, and did not release it.

And again. The defendants were not bound to release one table, unless, nor until, $300 was paid. If the receipt given on the 14th of January, could be construed as an agreement to release one table from the mortgage, there was no consideration to uphold it. What was paid, ($275,) was due to the defendants, and its payment was no sufficient consideration for an agreement, on their part, to relinquish any security they held for the payment of the balance. ' In this aspect, then, to hold the receipt to mean any thing more than “received on account of,” or “towards,” one table, (which, in the light of the original agreement, and all the facts, it may well mean,) would be so construing it, as to modify the original contract to the defendants’ prejudice; and that, too, without any consideration paid to them therefor.

It may be, that if the $300 had been paid, and the instrument of the 29th of August be so construed, that such payment would, per se, entitle Dean & Finnegan absolutely to have one of the tables released, it was the duty, as well as the right, of the defendants, to say’which of the tables should be discharged; and that their foreclosing, and themselves purchasing and taking possession of the four tables, would not prejudice the rights of Dean & Finnegan to have such designation made. If so, then the demand made by the plaintiff on the 8th of September, 1856, may, perhaps, be deemed to require them to make a designation; and their unqualified refusal to deliver one table, may be taken as a denial of the plaintiff’s right, and subject them to an action for its value.

But, under the views above expressed, the four tables continued mortgaged up to the time the defendants sold them, as absolutely and effectively as on the day the mortgage was executed; and, by the foreclosure of the mortgage, and the sale under it, the title of the defendants, as purchasers at such sale, became absolute, and the complaint was rightly dismissed.

Judgment affirmed.


author: By the Court. Bosworth, J.

text:
    Dodge, et al., Receivers, Plaintiffs and Respondents, v. Lambert & Gardner, Defendants and Appellants.
    1. Where a lessee covenants, in the lease executed to him, for a particular use of the demised premises, equity -will restrict him to that use by injunction.
    2. Where the use sought to be enjoined, violates not only the covenant of the lessee, but the sanctity of the Sabbath, the interposition of the Court by injunction is eminently proper.
    3. Where, by the terms, of the lease, it cannot be assigned without the written consent of the lessors, and it is assigned by virtue of the written consent of a person professing to act as their agent; and as a consideration of obtaining such consent, the assignees covenant to make such use of the premises as their assignor had covenanted to make, and they enter upon the premises and occupy them solely by virtue of such consent and assignment; they cannot, in a suit brought by the lessors against them to restrain them from using the premises for purposes other than those specified in their covenant, compel the lessors to prove that their professed agent was, in fact, such agent, having the powers which he assumed to exercise.
    4. A suit by such lessors, to enforce the contract, is, as between them and such assignees, a ratification and adoption of the acts of such agent, and in such a case, sufficient evidence of his authority.
    6. In such an action, the defendants cannot show as against their landlords, that the latter have no beneficial interest or estate in the demised premises.
    6. It is no defence to such an action, that the use covenanted not to be made, and which the defendants are making, in violation of their covenant, is not a public or private nuisance; nor that such prohibited use will not deteriorate the premises in value; nor that the lessees have expended large sums with a view to such prohibited use, which they will lose if not permitted to violate their covenant.

      1. A declaration of the agent, that his principals would not enforce such covenant, if no disorderly or improper conduct was permitted on the premises, is no defence to an action to enforce the covenant.
    (Before Boswokth, Woodruff and Pierrepont, J. J.)
    Heard, February 8;
    decided, March 13, 1858.
    This action comes before the Court at' General Term, on an appeal by the defendants, from a judgment granting the relief prayed by the'complaint. The judgment appealed from is, “ that the defendants be, and they hereby are, perpetually enjoined from using the premises mentioned in the complaint, or any part thereof, as a place of public entertainment on Sabbath days or evenings.”
    The complaint alleged, and it was proved on the trial, that the plaintiffs, on the 23d of February, 1855, were duly appointed receivers of the real estate of which Anson G. Phelps, then recently deceased, died seized and possessed, with power to rent or lease, in their names or otherwise, “ the said houses, lands, and premises, any and every part thereof,” from time to time, and for any term not exceeding five years.
    By a lease, dated the 1st of May, 1855, they, as such receivers, leased the premises in question to William Curr, for five years from that date. The lease was signed and sealed, as well by Wm. Curr, as by the said lessors. Such lease contains a covenant by said Curr, “ that he will not use or occupy, or permit the said premises, or any part thereof, to be used or occupied, for any business that may be a nuisance or noxious or dangerous to the neighborhood, and particularly that the same shall not be used or occupied as a grocery, or for selling liquor; and that he will not let or underlet the said premises, or any part thereof, nor assign this lease, or any portion of the term hereby demised, without the written consent of the parties of the first part, their successors or assigns, first obtained.” Said lease also declares, that “ it is expressly agreed, that should any default be made in the punctual payment of the said rent, or should the said party of the second part, (said Curr,) his heirs, executors, or administrators, violate or fail to perform any of the covenants or conditions hereinbefore contained on his part, then the said parties of the first part, their successors and assigns, may forthwith, without notice, and without resorting to any proceedings for recovery of possession, reenter the said premises either by force or otherwise, and remove all persons therefrom, without being liable to any prosecution therefor.”
    It was also proved, that on the 21st of November, 1856, Curr assigned the said lease to the defendants, pursuant to a written consent at the foot thereof, in these words, viz.:—

      “ Consent is hereby given to William Curr to assign the foregoing lease to James Lambert and David Gardner.
    By T. Allen, their agent.
    It was also proved, that cotemporaneous with the giving of such consent, and the assigning of said lease, an agreement in writing was executed, signed by Lambert & Gardner severally, and also signed “ Wm. E. Dodge, Anson G. Phelps, by T. Allen, their agent,” and in and by it, the said Lambert & Gardner “ expressly covenant and agree, that the said premises shall not, nor shall any part thereof, be open to the public as a place of entertainment or refreshment on Sabbath days or evenings; nor shall said premises, or any part thereof, be used, at any time, as a drinking saloon or tippling place, so called, under penalty of forfeiture of the lease.” •
    The defendants’ answer admits, that the garden and premises have been opened on the Sabbath, as well as on other days, until the temporary injunction was served in this action, but clenies “ that said premises have been, or are kept or used by them as a drinking saloon or tippling place, either on Sabbath or week days, in any way or manner offensive to public decency or good morals, or so as to have become or to be either a public or private nuisance, or in any way injurious to the plaintiffs, or to the estate of which they claim to be the receivers, or to the good order, peace, or good government of the neighborhood.”
    When the plaintiffs rested, the defendants moved to dismiss the complaint, .on the following grounds:—
    First.—That it did not appear that T. Allen, who executed the said agreement between the plaintiffs and defendants, as the agent of the plaintiffs, was, in fact, such agent, or had been or was authorized as such agent, to enter into or execute said agreement.
    Second.—That it had not been proved, nor did it in any way appear, that the plaintiffs, or the estate of Anson Gr. Phelps, deceased, had suffered, or would suffer any damage or injury whatever, by reason of the premises in question being used as a public place of entertainment or refreshment on Sabbath days, or by reason of the breach of any other covenant, complained of in the complaint, or admitted in the defendants’ answer.
    The Court refused to dismiss the complaint, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    First.—That Mrs. Phelps, the widow of Anson G-. Phelps, deceased, was, and had been, since her husband’s death, the owner in fee of the real estate leased to the said Curr, and described and referred to in the agreement executed by the defendants, and that the plaintiffs have not, and never had any beneficial interest or estate whatever in said real estate and premises.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Second.—That since said premises had been opened and kept by the defendants as a public place of entertainment, or refreshment, good order and decorum had, at all times, as well on the Sabbath as other days, been kept and preserved there; and that no noisy, riotous, or disorderly acts or conduct had occurred, or had been permitted to occur or take place there, either on Sabbath or other days; and that the said premises had never been kept or used by the defendants as a drinking saloon or tippling place, either on Sabbath or other days, in any way or manner offensive to public decency or good morals, or so as to have been, or to be either a public or a private nuisance.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Third.—That neither the plaintiffs, nor the estafe of which they claimed to be the receivers, had been injured or deteriorated in value, by the violation, by the defendants, of any covenant or agreement, alleged in the complaint, or admitted by the answer.
    • The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Fourth.—That the defendants, since their taking possession of the premises under their agreement with plaintiffs, had expended about $5000 in grading, improving, repairing and ornamenting the grounds and buildings thereon, which would be a total loss, should they be "perpetually restrained from keeping the premises open on Sabbath days, as a place of entertainment or refreshment, as the lease would thereby become valueless.
    The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then offered to prove—
    Fifth.—That a short time before the execution of the agreement between the plaintiffs and the defendants, Mr. Allen, who executed the same as agent for the plaintiffs, told the defendants, that it would be necessary to insert a covenant in said agreement, that the premises should not be opened to the public on the Sabbath, as a place of entertainment, to satisfy the plaintiffs’ religious scruples, and to get their consent to such agreement or lease to defendants, but that there should never be any complaint, and there was no intention to take advantage of the covenant, if the place was kept orderly, and no disorderly or improper conduct was permitted there; and that the defendants executed such agreement subsequently, relying on such statement of Allen.

      The Judge refused to admit the said evidence, and the defendants’ counsel excepted.
    The defendants then rested.
    Mr. Justice Hoffman, before whom* the action was tried, gave judgment in favor of the plaintiffs, as before stated, and from that judgment, the defendants appealed to the General Term.

      A. B. Dyett, for the appellants.
    I. The plaintiffs are receivers of the estate of Anson G. Phelps, and sue as such upon an agreement made 'by them in the same capacity. They ask a perpetual injunction to restrain the violation of a covenant. This is purely an equitable remedy. No damage to the plaintiffs nor to the estate they represent was proved, though it was alleged in the complaint. Nor would a damage to the other estate of A. G. Phelps give any right of action to the plaintiffs. Nor was it proved that there was any such “other estate” in existence. No irreparable damage was alleged or proved. No other damage than that alleged in the complaint can be presumed. The defendants on the trial offered to prove, not only that no damage was sustained, but that an actual benefit to the estate, and a great injury to the defendants were produced. The case then simply presents the question, whether a court of equity will, merely to gratify a whim or caprice of the plaintiffs, restrain by perpetual injunction the breach of a covenant, where it is confessed no damage to the plaintiffs could result from it, but a benefit be received by them, and the defendants be seriously injured. An injunction is a prerogative writ, not a writ of right. There is no such thing as an absolute right to an equitable remedy. Absolute rights may be enforced in courts of law, or by what are known as legal remedies ; but equity will not aid in the enforcement of a right, unless it be attended by an equity; and that equity must be a wrong to the plaintiffs, consisting of the deprivation of a substantial right, which cannot be redressed or compensated by a legal remedy. (Willard’s Equity, 274; Story’s Eq. J. § 928; Id. § 864.) And that wrong must be attended by an injury; otherwise it is injuria absque damno, where damage has been suffered, but is irreparable by a court of law, there equity will lend its aid to complete the remedy. But where a court of law gives nominal damages, because no real damage has been sustained, there the maxim equitas sequitur legem, applies. Strictly, at law, nominal damages might here be recovered, without proof of any. But that remedy would be adequate. Ex nihilo fit nihil. The plaintiffs have no equity, and should be left to their action for damages. (Willard’s Equity, 261; and see Point V. infra.; Story’s Eq. J. § 959, a. b. and notes.)
    II. The covenant in question was made by an agent of the plaintiffs, who were themselves but agents, and could not delegate their authority.’ There was, therefore, no consideration for the covenant on the part of the defendants, because it was void as to, and did not bind plaintiffs; nor had the plaintiffs, as receivers, any authority to make or exact such a covenant.
    IH. The only consideration for the covenant alleged in the complaint, was “ to obtain the plaintiffs’ consent to an assignment of the lease,” by the tenant Curr. It was extorted from the defendants, and will not be favored in equity. (Willard’s Equity, 261.)
    IV. The covenant is unfair and unreasonable. The defendants not only extorted the covenant in question, but as a consideration of simply consenting to assign, they, in addition to this, in the same agreement, extorted a covenant to improve the premises to the extent of $2000, and that those improvements should belong to them. And they were mere officers of the Court to lease the premises. (Willard’s Equity, 262, 267, 268.)
    V. The covenant should not be enforced by injunction, for the following additional reasons: 1. It is not mutually capable of specific performance. (Willard Eq. 267.) 2. It is objectionable in its nature and circumstances. (Id. 262; Story Eq. J. § 959, a. b. and notes.) 3. Although the Court might refuse to annul such a covenant, yet it would not enforce it. (Id. 263, 266.) 4. It is a hard and unconscionable contract, and is not fair and just in all its parts. (Id. 264, 266, 268.)
    VI. The covenant in question provides that the penalty for its violation shall be a forfeiture of the lease. This is the only remedy the plaintiffs have, except their other legal one for damages. At all events, this is sufficient to prevent their having a specific performance and perpetual injunction, (Vincent v. King, 13 Howard, 234,) especially where no damage is pretended.
    VII. The Judge on the trial, for the several reasons above stated, erred in refusing to dismiss the complaint, and in refusing to receive the evidence offered by defendants.
    VII. The judgment should be reversed, and the complaint dismissed, with costs.

      A. Wakeman, for the respondents.
    I. The defendants, having taken their title to the premises through Mr. Allen, as agent, are estopped from denying his authority to make the agreement under which they hold.
    II. They are also estopped from denying the title of the plaintiffs, who are their landlords.
    III. Evidence is inadmissible, to avoid a covenant by showing, that at the time of its execution, it was agreed by parol, that it should not be operative.
    IV. It is not an answer to an action for the breach of a contract, that its performance would be a pecuniary disadvantage to the defendants.
    V. The proprietor of premises may stipulate in a lease, that they shall not be occupied by the tenant for a purpose that is unlawful; or that is inconsistent with morality, or public propriety. And such a covenant will be enforced by a court of equity, although no pecuniary loss, and no actionable nuisance, is shown to have arisen from its violation. The' consideration, that the breach of such a contract cannot be the subject of pecuniary estimation, renders the case peculiarly proper for "equitable cognizance. (Story’s Equity, §§ 925, 926, 927, 959; Steward y. Winters, 4 Sand. Ch. R. 587.) Even a covenant in reference to a matter of a mere taste, in the occupation of premises, will be .enforced by injunction. (Squire v. Campbell, 1 Mylne & Craig, 459, 477 to 486 ; Heriot's Hospital v. Gibson, 2 Cow. 301; Howard v. Ellis, et al. 4 Sand. S. C. R. 369.)
   By the Court. Bosworth, J.

Assuming the consent, that Curr might assign the lease to the defendants, to be the same, in effect, as if it had been signed by the plaintiffs personally, and the agreement between them and the defendants to be as valid and effective as if the plaintiffs had executed it in person, instead of executing it by T. Allen, their agent, the only question would be, whether the defendants can be restrained by injunction from violating the covenant in question. Steward v. Winters, (4 Sand. Ch. R. 587;) Howard v. Ellis, (4 Sand. S. C. R. 369,) are authorities in support of the affirmative of that proposition.

The provisions of the statute law, which inhibit the transaction, on the Sabbath, of the business which the defendants covenanted not to prosecute on the premises on that day, and the considerations of public policy, which induced the enactment of such laws, should not disincline the Court to enforce, in behalf of the plaintiffs, such use of the demised premises as they exacted, when consenting to the transfer of the lease, and as the defendants, to obtain such transfer, then covenanted to make of them. (1 R. S. 675 ; Articles 8 and 9 of Part 1, chap, xx.)

The defendants have no right to use the premises at all, except by treating Allen as the actual agent of the plaintiffs, and one whom they were competent to appoint to do the acts, which he performed in their name and on their account. The plaintiffs were competent to do, personally, the acts which Allen performed as their agent, and the evidence of their ratification and adoption of his acts, furnished by their claiming the benefits of the contract, is sufficient to make the consent to the transfer of the lease and the agreement their own contracts, as between themselves and the defendants, who have entered into, and continued in the use and enjoyment of, the premises, by virtue of these transactions. (3 Kern. 593-594.)

The Court, therefore, properly refused to dismiss the complaint, on the grounds on which it was moved.

The first offer of evidence was properly excluded, because the defendants were not at liberty to show, in this action, that their landlord never had any interest in the demised premises. (Jackson v. Davis, 5 Cow. 123.) The fact that Mrs. Dodge may have owned the premises in fee, does not, necessarily, make the appointment of the plaintiffs, as receivers of such premises, void, nor affect the validity of any leases which they make, of any part of the premises to which their receivership extended.

The evidence proposed to be given under the second, third, and fourth offers, present no reasons why the defendants should not perform their contract, as they made it. (Howard v. Ellis, et al., supra)

The fifth offer proposed to vary the effect of a written agreement, by proving less than a cotemporaneous verbal contract, in" conflict with it. It proposed to prove a statement of the agent, that his principals would not avail themselves of the benefit of a covenant which they exacted, provided the violation of it was orderly, and not accompanied by disorderly or improper conduct. This exception, like the others, is untenable, and the judgment must be affirmed.

Judgment affirmed.


author: By the Coubt. Woodbuff, J.

text:
    Joseph Rocco, Plaintiff and Respondent, v. James H. Hackett, Defendant and Appellant.
    1. In an action in this State, upon a judgment recovered in a sister State, if it appear that the Court by which it was rendered had jurisdiction of the subject matter, and of the person of the defendant, such judgment is conclusive.
    2. The Courts of this State will not inquire into the merits of the plaintiff's claim, nor whether the judgment was recovered according to law, even though it be alleged that the most obvious dictates of justice were violated.
    3. "Where an action was brought on a judgment of the Superior Court of Suffolk County, Mass., which judgment was duly proved, and it appeared, that the defendant appeared, by his attorneys, in the action; and further, that such judgment was recovered on a prior judgment of the Court of Common Pleas:

      Held, the defendant cannot defeat a recovery in this State, by proving that he never owed the plaintiff the debt; that he was never a resident, inhabitant or citizen of Massachusetts, but of Hew York; that he was never served with process in, or had any notice of the judgment in the Common Pleas, until sued thereon in the Superior Court; that, by the laws of Massachusetts, he was, in the said Superior Court, prevented from setting up any defence to the action; and that the judgment of the Common Pleas was, by the same laws, declared legal and valid.
    Heither, nor all, of these facts can be received here as a defence.
    (Before Hoffman, Woodruff and Pierrepont, J. J.)
    Heard Feb. 3d;
    decided March 13th, 1858.
    This action is brought upon a judgment recovered in the Superior Court of the County of Suffolk, State of Massachusetts, on the 18th February, 1856, for $293 79/100.

      The answer (so far as it is material to state its contents) avers that the judgment on which this action is brought, was recovered on a previous judgment, purporting to have been rendered in favor of this plaintiff against the defendant at a Court of Common Pleas held at Boston, in and for said County of Suffolk, on the 4th of April, 1848, for the record of which shows a declaration
    against the defendant, Hackett, and one Eord,' as joint debtors; that the-action was commenced at the previous July Term of the said Common Pleas, “ when and where said Ford appeared, and a Deputy Sheriff of Suffolk returned, that he left a summons at the last usual place of abode of said Hackett, and thence the action was continued from term to term to the present (April) term, and now the plaintiff discontinues against Ford, on the ground of his insolvency, and said Hackett, though called to come into court, does not appear, but makes default. It is, therefore, considered by the Court that the said Rocco recover of the said Hackett the sum of $U7xinr damages, and $56x2^- costs of suit.”
    The answer in this present action proceeds to deny that there was any thing due to the plaintiff from this defendant alone, or with Thomas Ford; and avers that he never was a resident, inhabitant, or .citizen of the State of Massachusetts. ■ That before the commencement of that action, (in the Common Pleas,.) and up to the said judgment, he was not within the jurisdiction of Massachusetts, but was before, and at the time mentioned, and ever since, a resident, inhabitant, and citizen of the City, County and State of New York;, was never served with any writ, process, or summons in, or notice of the said action, and never appeared therein by attorney or otherwise, and had no notice thereof until the action was commenced thereon, -which resulted in the judgment referred to in the complaint in this action. That in the action in the Superior Court, he was, by the'laws of Massachusetts, prevented and precluded from setting up any defence to the ' action in which such judgment in the Common Pleas was rendered, and such judgment was .declared to be legal and valid, and of the same force and effect as if- the defendant had been personally served, or had appeared and defended the same, and he, the defendant, has never had an opportunity of being heard in or defending said action on the merits thereof.
    That the said Court of Common Pleas never had any jurisdibtion of this defendant, nor of the subject of the action, and the said Superior Court acquired no other or further jurisdiction, and both judgments are fraudulent and void.
    The action was brought to trial on the 16th of June, 1857, before Chief-Justice Duer and a jury, and the plaintiff gave in evidence a record of a judgment of which the following is a copy :—
    “ Judgment.
    “ Commonwealth of Massachusetts, Suffolk, ss:
    “ To all persons to whom these presents shall come, Greeting : Know ye that among our records of our Superior Court of the County of Suffolk, it is thus contained:
    “ The Commonwealth of Massachusetts, Suffolk, ss: “To the
    Sheriffs of our several Counties, or their Deputies,
    [Seal.] Greeting:
    “We command you to attach the goods or estate of James H. Hackett, now commorant of Boston in the County of Suffolk, gentleman, to the value of five hundred dollars, and summon the said defendant, if he may be found in your precinct, to appear before our Justices of our Court of Common Pleas, to be holden at Boston within and for our County of Suffolk, on the first Tuesday of April next; then and there in our said Court to answer unto Joseph Rocco of Boston aforesaid, musician, in an action of contract; and the plaintiff says that he, said plaintiff, by the consideration of our Justices of our Court of Common Pleas, held within and for the County of Suffolk, on the fourth day of April, A. p., 1848, recovered judgment against the said defendant by the name of James H. Hackett, of Boston Theatre, Manager, for the sum of one hundred and seventeen dollars damages, arid fifty-six -¡^gy dollars costs of same suit, as by the record thereof now remaining in said Court appears, which said judgment is in full force and not reversed, annulled or satisfied. And the defendant owes the plaintiff both said sums and interest thereon, amounting in all to two hundred and forty-three dollars and thirty-nine cents. To the damage of the plaintiff, as he says, the sum of five hundred dollars, which shall then and there be made to appear with other due damages. And whereas the said plaintiff says that the said defendant has not in his own hands and possession, goods and estate to the value of five hundred dollars

      aforesaid, which can come at to be attached, but has intrusted to and deposited in the hands and possession of Eben H. Wade, of Boston, in the County of Suffolk, gentleman, William F. Flemming of said Boston, Treasurer of the Boston Theatre, and the Webster Bank, in Boston, a corporation established by law, and Frank Flemming, Treasurer of the Boston Theatre, in said Boston, trustees of the said defendant’s goods, effects, and credits to the said value, we command you, therefore, that you summon the said Eben H. Wade, and said Flemming, and said Webster Bank, and said Frank Flemming as aforesaid, if they may be found in your precinct, to appear before our Justices of our said Court to be holden as aforesaid, to show cause, if any they have, why execution, to be issued upon such judgment as the said plaintiff may recover against the said defendant in this action, if any, should not issue against his said goods, effects or credits in the hands and possession of the said trustees, and have you there this writ with your doings therein.
    “ Witness, Edward Mellen, Esquire, at Boston, the twenty-ninth day of January, in the year of our Lord one thousand eight hundred and fifty-five.
    “Joseph Willard, Clerk."
    “ Upon which writ is the following return by the officer who served the same.
    “ Suffolk, ss: January 29, 1855. By virtue hereof, I, this day at 7 o’clock, p. m., summoned the within named Eben H. Wade to appear and show cause at Court, by reading this writ in his presence and hearing; afterwards on the same day, I again summoned said Wade to appear and show cause at Court by leaving an attested copy of this writ at his last and usual place of abode. Also, on the same day, I summoned the within named William F. Flemming, Treasurer of the Boston Theatre, to appear, and show cause at Court by delivering to him in hand an attested copy of this writ, and on the thirtieth day of said January, I summoned the within named Webster Bank to appear and show cause at Court by delivering to Solomon Lincoln, Esq., cashier thereof, an attested copy of this writ. February 2, 1855, I summoned the within named Frank Flemming, Treasurer of the Boston Theatre, to appear and show cause at Court by delivering to him an attested copy of this writ. On the same day I attached a chip, as the "property of the within named James H. Hacket, and summoned him to appear and answer at Court by delivering to Mm in hand an attested copy of this writ.
    “Service and travel, $1.70—copies and extra trouble, $5.
    1E. W. Sanborn, Deputy Sheriff.
    “ At the said Court of Common Pleas, held at Boston, in and for said County, on the first Tuesday of April, A. D., 1855, the plaintiff appeared by Charles Gr. Thomas, Esq., his attorney, and entered the above action, and the defendant appeared by his attorneys, James A. Abbott and J. Kendall Tyler, Esq., and on the tenth day of April, during the April term, filed the following affidavit:—
    “ Commonwealth of Massachusetts, Suffolk, ss:
    “ Court of Common Pleas, April Term, 1855.
    “Joseph Rocco, plaintiff,

      v.

    “ James H. Hackett, defendant, and Trustees.
    “I, James A. Abbott, on behalf of James H. Hackett, the defendant in the above action, on oath declare, that I verily believe that he has a substantial defence to the above named action on its merits, and intend to bring the same to trial.
    “ Jas. A. Abbott.
    “ Subscribed and sworn to this [
    April 4, A. D., 1855, before me, j
    “ J. Kendall Tyler, Justice of the Peace.
    “ And on the twentieth day of said April, during said term, said defendant filed the following answer:—
    “ Commonwealth of Massachusetts, C. C. Pleas.

    “ J. Rocco,

      v.

    “ J. H. Hackett and Trustees.
    “And the defendant comes and says, that, admitting that there is such a judgment as is set forth in the plaintiff’s writ and decíaration, he says that such judgment ought never to have "been rendered, because that no legal service was ever made upon him in the original suit upon which said judgment was rendered. And he further says, that he has -instituted proceedings for a stay of said judgment in the Supreme Judicial Court for Suffolk County aforesaid, according to the form of the statute made and provided in such cases. Abbott & Tyler, attorneys for defendant.
    “And on the twenty-second day of said June, during said Term, the plaintiff and defendant filed the following agreement:—
    “No. 2285 Court of Common Pleas, April Term, 1855,
    '“ Rocco v. Haekett and Trustees.
    “It is agreed, that the above action may be continued for judgment v. defendant, to July Term, next first day.
    “ Jas. A. Abbott, attorney for defendant.
    “ C. G. Thomas, attorney for plaintiff.
    “ June 14, 1855.
    “ And thereupon the defendant, though called, did not appear, but made default.
    “ And thence the action, having been continued to the October Term, was transferred by act of law to the last (November) Term of this Court.
    “And thence the action was continued to the present January Term, 1856, and now, on the eighteenth day of February, during said January Term, the following is filed:—
    “ Suffolk, ss. Superior Court, January Term, 1856.
    “ Joseph Rocco v. James H. Haekett and Trustees.
    “All the trustees in the above case may be discharged without costs. “ C. G. Thomas, attorney for plaintiff.
    “ J.. H. Butler, attorney for trustees.
    “ And thereupon it is ordered by the Court, that said trustees be discharged without costs. And it is considered by the Court, on the eighteenth day of February, A. D., 1856, that the said Rocco recover of the said Haekett the sum of two hundred, fifty-eight dollars seventy-nine cents damages, and thirty-five dollars costs by suit.
    “ All and singular which premises we have held good by the tenor of these presents to be exemplified.
    “ In testimony whereof, we have caused the seal of our Superior Court of the County of Suffolk, to be hereto affixed.
    “ Witness, Albert H. Eelson, Esquire, Chief Justice of
    [Seal.] our said Superior Court, at Boston, this fourteenth day of May, A. D., eighteen hundred and fifty-six.
    “Attest. Joseph Willard, Clerk.’’
    (Judge’s Certificate.)
    It was admitted that this record was properly authenticated to be read in evidence.
    The plaintiff then rested his case.
    The counsel for the defendant then produced, and offered in evidence,' a record of a judgment of the Court of Common Pleas of Suffolk County, in the Commonwealth of Massachusetts, a copy of which is set out in the defendant’s answer. The same being objected to by the plaintiff’s counsel, the Court excluded it, to which ruling defendant’s counsel excepted.
    Defendant’s counsel then offered to prove the following, and in support’ thereof, called the defendant to establish the same, due notice having been served on the plaintiff’s attorney of such intended examination; but the Court, being of the opinion that said evidence would constitute no defence at law to said action, refused to allow the same, to which the defendant duly excepted :—
    1. That there never was any sum whatever due, or owing, from the defendant, either alone or with one Ford, to the plaintiff.
    2. That the defendant was never a resident, inhabitant, or citizen of Massachusetts, but of the State, of Eew York.
    3. That the -defendant was never served with process in, nor ever had notice of, the judgment on which the judgment mentioned in the complaint was recovered, until suit on the latter was commenced.
    4. That nothing is or was ever due from defendant to plaintiff.
    5. That, by the laws of Massachusetts, he was, in said Superior Court, prevented from setting up any defence to the action in which said judgment, in the Court of Common Pleas, was recovered ; and that, by the same laws, said judgment was declared to be legal and valid.
    To which several offers the plaintiff’s counsel objected, and the same were excluded by the Court, to which ruling defendant’s counsel excepted.
    The Court thereupon directed the jury to find a verdict for the plaintiff, for the full amount claimed; and the jury then and there rendered a verdict in favor of the plaintiff, against the defendant, for the sum of $320.89: to all which the defendant’s counsel excepted.
    Judgment being entered for the plaintiff upon the verdict, the defendant appealed to the General Term.

      C. Bainbridge Smith, for the defendant (appellant).
    I. The defendant, a citizen of this State, had judgment pronounced against him in a suit commenced in Massachusetts, while he was in this State, without notice, and without an opportunity of being heard, or making a defence. 1. An action, by the laws of Massachusetts, may be commenced in any of the Courts of that State, against a non-resident defendant, by leaving the summons at his last and usual place of abode. (Mass. R. S. 1836, p. 552, §§ 44, 45; Mass. R. S. 1836, p. 566, §§ 3, 4.) 2. A judgment obtained by such service is valid; and, in an action upon such judgment, by the same laws, the want of personal service or notice, constitutes no defence, nor can the merits of the original action be inquired into. (Hawes v. Hathaway, 14 Mass. R. 233.) 3. On the other hand, a judgment recovered in another State against a citizen of Massachusetts, when sued there, if it appear he was not personally served with process within that State, is void, for want of jurisdiction. (Hall v. Williams, 6 Pick. R. 232; Ewer v. Coffin, 1 Cush. R. 23, 28.) 4. The Legislature of a State has no power to pass a law, by which the Courts of .that State can pronounce a judgment against a citizen of another State, without his having an opportunity of being heard. (Oakley v. Aspinwall, 4 Comst. R. 513, 521, 522; Ewer v. Coffin, 1 Cush. R. pp. 23, 28.)
    II. The judgments recovered in Massachusetts against the defendant were fraudulently obtained. The defendant, in his answer, sets up the facts specifically, and, on the trial, offered evidence in support of that defence, which was ruled out by the Court, and exceptions taken. (Dobson v. Pearce, 2 Kern. R. 156.)
    III. Any fact, which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unznixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity. (Dobson v. Pearce, 2 Kern. 156, 165, and cases cited; 2 Story Eq. Jur. §§ 887, 894, 896.) 1. The claim on which the judgments in Massachusetts were obtained was unfounded. 2. The defendant, without any fault or negligence on his part, has been deprived of the opportunity of showing the claim against him was unfounded. 3.. The answer sets up an equitable defence, and one which the defendant, in Massachusetts, could not avail himself of' at law. 4. The Court below rejected the evidence offered on the part of the defendant, on the ground that it would constitute no defence at law. 5. The distinction between actions at law and suits in equity, the jurisdiction of the respective courts, and their form of proceeding, are preserved in Massachusetts. (Mass. R. S. p. 500.) 6. The equitable relief prayed for by the defendant—namely, to be allowed to prove the plaintiff’s claim against him unfounded, and of which defence the defendant was at law deprived—if granted, would not be inconsistent with the full faith and credit to which judgments of other States are entitled. (Dobson v. Pearce, 2 Kern. R. 156; Pearce v. Olney, 20 Conn. R. 544, 556.)

      Cornelius A. PunJcle, for the plaintiff (respondent).
    Among the respondent’s points are the following:—
    I. The defendant, having agreed that the plaintiff might take judgment against him, is now estopped from denying the validity of it. a. The stipulation of the attorney binds the party. (15 Wend. 380.)
    II. The judgment upon which this action is brought is conclusive in Massachusetts, upon the merits; therefore it is conclusive here. (Art. 4th, § 1, Con. IT. S.; Act of Congress I., H. S. Statutes at large, p. 122, ch. 37; Miller v. Duryea, 7 Cranch. 481;
      Hampton v. McConnel, 8 Wheat. 234.) a. The general rule both in this country and in England is, that a question settled, or which might have been settled in a suit in a court of competent jurisdiction between actual parties, after trial will not be opened. (2 Parsons on Contracts, 118; Henderson v. Henderson, 2 Q. B 288; Bruen v. Hone, 2 Barb. 586 ; Baker v. Band, 13 Barb. 152, and cases cited; Embry v. Conner, 3 Com. 511; Smith v. Lewis, 3 John. 157; Emery v. Greenough, 3 Dallas, 369, 372.) b. It will be presumed that all the defences the losing party had were made and were insufficient. (2 Parsons on Con. 118.)
    IH. This court cannot go behind the judgment sued on. (See authorities cited under 2d point; Bissell v. Briggs, 9 Mass. 462; Sergeant v. Bank of Indiana, 4 McLean, 339 ; Wern v. Pauling, 5 Gill and John. 500; Simpson v. Hart, 1 John. Ch. 91; Green v. Sarmiente, 1 Peters, C. C. 74; Rust v. Frothingham, Breeze’s R. 258; Curtis v. Gibbs, Pennington’s R. 399; Kimmell v. Shultz, Breeze’s R. 128; Field v. Gibbs, 1 Peter’s C. C. 155; Noyes v. Butler, 6 Barb. 613; Aldrich v. Kinney, 4 Conn. 380; Starbuck v. Murray, 5 Wend. 159 ; Shumway v. Stillman, 4 Cow. 296; Id. 6 Wend. 447.)
    IV. The true rule is that a judgment recovered in another State is conclusive in an action brought on it in this State as to all facts recited in the record, except those which go to show the jurisdiction of the court rendering the judgment; to wit, service of process on defendant personally, or his appearance in the action personally or by his attorney. (Noyes v. Butler, 6 Barb. 613.) a. Where the record of the court of a sister State shows on its face that the court rendering the judgment had jurisdiction of the person of the defendant, and when such jurisdiction is not disproved, such record is, under the Constitution and laws of Congress, conclusive evidence of all and every other fact contained in it. It ranks as high as a domestic judgment and will be as conclusive as such a judgment upon the parties. (9 Mass. 468; 6 Pick. 241; 19 John. 162, and cases cited above.
   By the Coubt. Woodbuff, J.

The defendant was sued in one of the courts of Massachusetts; he was personally served with process; he appeared in the action; he interposed such defence as he was advised; judgment was rendered against him. Having jurisdiction of the subject matter, and having jurisdiction of his person by personal service of process, and by actual appearance, the judgment of that court is in the absence of impeachment for fraud conclusive upon us.

We are not at liberty to inquire upon what views of the law that court proceeded; or whether, if we had to pass upon the same questions, we should have rendered the same judgment.

We can no more say that that court erred in holding the previous judgment (obtained without actual service of process on the person of the defendant) valid and binding, and, therefore, we will disregard their adjudication upon that question, than in any case, where it appeared that a judgment was recovered on demurrer to a complaint we would hold the judgment open to inquiry, because we deemed the complaint insufficient in law to warrant a judgment.

Indeed, we hold the rule invariable, that where jurisdiction of the subject and of the person has been acquired and judgment rendered, in the court of a sister State without any fraud, we can neither inquire into the facts proved, nor the law applied to those facts, by which such courts were governed.

The judgment must be affirmed with costs.