source: Caselaw Access Project

author: By the Court—Woodruff, J.

license: Public Domain

text:
    John Moffat, Plaintiff and Respondent, v. Thomas W. Strong, Defendant and Appellant.
    1. A tenant being put out of possession, may defend an action "for the rent, by proof that he was ousted by one having a title paramount to that of the landlord, although the ouster was not by virtue of a judgment, decree or any legal process; such tenant taking the burden of proof that he acted in good faith, and that such title was in fact paramount.
    2. It is not an unqualified rule that a tenant, put in possession by his lessor, may not deny the title of the latter. The rule is, that a tenant may not accept possession from a lessor, hold and enjoy under the demise, and then refuse to pay the rent, or refuse to yield the possession to his lessor at the termination of his lease, and justify such refusal in either case, by alleging or proving that the lessor, under whom he has had such enjoyment, had in fact no title. But eviction under title paramount is a defense, whether such title, was in the evictor before the lease, or was acquired by him after the lease was executed.
    3. If such eviction or ouster is from a part of the demised premises, it entitles the tenant to an apportionment of the rent, and an abatement according to the relative value of the part from which he is evicted.
    4. Leases for a term not exceeding three years are not within the statute, (1 R. S., 738, § 140,) which declares that no covenant shall be implied in any conveyance of real estate.
    5. The implied covenant for quiet enjoyment which arises upon such a lease is broken' by an expulsion, by one having paramount title, without any judgment or decree.
    G. The defendant was tenant of a lot of land, and buildings thereon, under a lease from the plaintiff, for the term of three years. The owner of the adjoining lot was, in fact, the owner of a strip of land within and along the side of the demised premises, and on which, in part, the wall of the buildings rested; and he notified the defendant of the encroachment, and that he was about to excavate under the wall, and required him to remove the wall. The defendant gave written notice of this claim to the plaintiff, and required him to defend his rights as he might be advised, and notified him .that he should hold him responsible for any damages sustained; but the plaintiff taking no measures to protect the wall or prevent its removal, and the excavation being commenced, the defendant, in view of the danger caused by the undermining of the wall, took it down and rebuilt it on the line of the plaintiff’s lot. In the plaintiff’s action to recover the rent;

      Held, 1st. That these facts constituted such an eviction by paramount title, from a part of the demised premises, as to suspend a portion of the rent, and were available as a defense thereto. 2d. That they were also a breach of the implied covenant for quiet enjoyment, and were available as grounds for a counterclaim to the rent.
    (Before Bosworth, Ch. J., Woodruff and White, J. J.)
    Heard November 7, 1861;
    decided December 28, 1861.
    Appeal from a judgment in favor of the plaintiff, on a verdict recovered upon a trial before Mr. Justice Robertson and a Jury, on the 12th of April, 1861.
    The facts of the case are fully stated in the opinion of the Court.

      Walter Rutherfurd, for the defendant, (appellant.)
    I. The ruling of the Judge, excluding all evidence of the facts set up by the amended answer, is equivalent to a decision in favor of plaintiff, upon demurrer to the answer, and raises the simple question: do the facts set up constitute a defense ?
    II. There is an implied covenant of quiet enjoyment of “ the lot with the buildings thereon.” (Whitney v. Lewis, 21 Wend., 136; Giles v. Comstock, 4 Comstock, 270; Mayor of New York v. Mabie, 3 Kern., 151; Vernam v. Smith, 15 N. Y., 332; La Farge v. Mansfield, 31 Barb., 345; 33 Id., 404; 24 Id., 180; N. Y. Ice Co. v. N. W. Ins. Co., 21 How., 296; Gilbert on Rents, 135.)
    III. The object of this covenant is to protect from lawful claims by third parties having title paramount, and its scope is equally extensive as that of an express covenant, which'extends not only to an actual eviction, but disturbance of the possession of the covenantee. (Kortz v. Carpenter, 5 Johns., 120; 8 Coke, 89; 2 Comyn’s Rep. Anon., 228; Waldron v. McCarty, 3 Johns., 471; 1 Lev., 301; 2 Saunders, 181, b.; Dyett v. Pendleton, 8 Cowen, 727; Foster v. Pierson, 4 Term R., 617; see also, 2 E. D. Smith, 206.)
    IV. The defendant was evicted by paramount title and the necessity of the case. The wall, being undermined, was taken down and rebuilt, and during that time he was deprived of the enjoyment of the whole of the demised “buildings,” and during the whole balance of the term was evicted of so much of said premises as encroached on Myers’ lot.

      Such eviction discharges the whole rent, and there can be no apportionment. (Dyett v. Pendleton, 8 Cow., 727.)
    V. All legal and equitable rights of parties in relation to the same subject matter, and arising therefrom, should be settled in one action ; and a landlord, seeking to enforce his rights, now stands in the same position as any other litigant. Damages, liquidated or unliquidated, may be recovered against him for a breach of his covenants in the lease he sues upon equally as well as on a breach of any other contract. (Mayor of New York v. Mabie, 3 Kern., 154; Dyett v. Pendleton, 8 Cow., 727; Blair v. Claxton, 18 N. Y. R., 534; Id., 583; Platt on Covenants, 312; Peck v. Hiler, 24 Barb., 178; Bank of Toronto v. Hunter, 20 How., 298; Mayor of New York v. Parker Vein Steamship, 21 How. Pr., 289; New York Ice Co. v. North Western Ins. Co., Id., 299; Phillips v. Gorham, 17 N. Y. R., 270.)

      Lyon for the plaintiff, (respondent.)
    The answer did not set up an eviction by the landlord, or through his agency, or under a recovery by a third party under a paramount title. The fact that Myers, under his claim of title, was excavating the foundations of his building, whereby the plaintiff’s was endangered, and that the removal and reconstruction of the wall was a necessity to prevent such damage and danger, and that such disturbance was occasioned, by the paramount title of Myers to this strip of land, which was not owned by the plaintiff, is no statement of a legal eviction. It is an averment in effect that Myers was about to commit a trespass, for which the landlord was in no manner responsible, and that to prevent the consequence of this trespass, defendant himself pulled down his-landlord’s wall, surrendered ground of which his landlord had put him in possession, and now seeks to recover the cost and damages of his own act.
    The additional averment, that Myers owned the strip does not help the pleading, for, taken as a whole, it admits the tenant in actual possession under his landlord, and that, while in such possession, he took down the wall, upon the demand of Myers, and while Myers was taking forcible possession of premises then in the tenant’s occupation.
    If such a defense can be tolerated, then every tenant can defend himself from the payment of rent upon his naked averment that his landlord’s title is in a stranger, and can compel his landlord to prove his title upon the trial for the rent. If the defendant could avail himself of this defense, he could so with equal success had he surrendered the whole premises to Myers upon Myers’ naked claim of ownership, unsupported by any recovery. (Taylor’s Landlord and Tenant, section 378.)
    No broader definition of an eviction has ever been given than in the opinion of Mr. Justice Spencer, in the case of Dyett v. Pendleton, (8 Cow., on page 730.)
    Under this it cannot be pretended that the defendant has stated in his answer a legal eviction.
    Assuming that the answer does not show a case of legal eviction by paramount title, and conceding as true, all of its statements, the injury stated is not one for which the tenant can recover. Because,
    1. The lease itself, in which the tenant is to do all repairs, ordinary and extraordinary, contemplates that the tenant was to provide for any such contingency as did happen; and,
    2. Independent of this special clause, the law imposed upon the tenant this duty, and not upon the landlord. (Howard v. Doolittle, 3 Duer, 464.)
   By the Court—Woodruff, J.

The action is brought by the plaintiff as lessor of the lot and buildings known as Eo. 371, in Broadway, in the City of Eew York, against the defendant, as the assignee of the lease, to recover one quarter’s rent, accruing while the defendant is averred to have been in possession, to wit, on the 1st day of February, 1860, to the amount of $1,375.

The defendant, by his answer, admitted the lease to his assignor, (one Kirker,) the assignment to himself, his entry and possession of the premises, as assignee, but in trust for the payment of the debts of Kirker, who had become insolvent.

The answer then proceeded to set up what was claimed to be a breach of the implied covenant for quiet enjoyment, by the acts of one Myers, the owner of the adjoining lot, (No. 373,) who, as the answer alleged, was the actual owner of a strip of land from five to eight and one-quarter inches in width, extending from the rear of the lot, sixty feet in length, towards Broadway, whereon the north wall of the demised premises in part rested., On the trial the presiding Justice, on the objection of the plaintiff’s counsel, having ruled that the facts alleged in the answer constituted no defense, excluded all evidence offered by the defendant in support thereof. Thereupon the defendant, by leave of the Court, amended his answer, and offered to prove the facts alleged in such answer, as amended; but, on objection, all evidence was excluded, on the ground that if the facts were proven, they constitute no defense to the action.

On the part of the defendant it is claimed that the facts alleged in the answer, as amended, constitute an eviction of the tenant from a part of demised premises, under paramount title, and so operated as a suspension of a part of the rent. They were further claimed to constitute a breach of a covenant for quiet enjoyment implied in the demise, and to entitle the defendant to damages by way of counterclaim.

Though inartificially framed, the answer, as amended, in substance avers: That the defendant being in the possession of the demised premises, Myers, who was the owner of the lot next adjoining, including a portion of the demised premises, that is to say, of the strip of land above mentioned, whereon the north wall of the demised building rested, notified the defendant of the encroachment upon his lot, and of his title to said strip of land, and that he was about to excavate and build upon his lot, and required the defendant to remove the said wall therefrom. That the defendant thereupon gave written notice to the plaintiff of Myers’ claim, and of his requirement that the wall Be removed, and demanded that the plaintiff take such measures as he might be advised, to defend his rights and protect the premises, and notified him that the defendant would hold him responsible for all expenses caused by a removal of the wall, and for all loss and injury to his business, for any eviction by the plaintiff or others from any portion of the demised premises. That the plaintiff wholly disregarded such notice, and neglected to shore up the wall or to claim or enforce any right to have it remain where it stood. That Myers proceeded to excavate for the foundation of his building, and the said north wall was in danger and would have fallen as such excavation proceeded, which would have occasioned the fall of the building itself, the destruction of a large amount of the defendant’s property, and possible loss of life; and the removal and reconstruction of such wall was a necessity to prevent such damage and danger; and the defendant, to prevent the fall of the building, did cause the floors to be supported, and such north wall to be taken down and rebuilt on the line of the plaintiff’s lot.

That such disturbance of the defendant’s quiet enjoyment of the said premises was occasioned by the paramount title of Myers, in and to the said strip of land encroached upon by the said wall and which was not owned by the plaintiff, which paramount title existed before and at the time of such disturbance, and the defendant was evicted, by reason thereof and of such excavation, from the possession of so much of the demised premises as stood upon the said strip of land, and from the quiet use and enjoyment of all the demised premises.

I. The question we propose first to consider is, whether the facts constitute an eviction from a part of the demised premises, entitling the defendant to an apportionment of the rent and an abatement according to the relative value of the part from which he is evicted.

That if the facts constitute an eviction, such a consequence follows, we do not .understand the plaintiff to deny. An eviction by the landlord from either the whole or a part of the demised premises suspends the whole rent. An eviction by another under paramount title, if of the whole, suspends the whole rent; if of a part of the demised premises, it entitles the defendant to an apportionment.

The answer distinctly avers a paramount title in Myers to the strip of land which it alleges formed a part of the demised premises. This must be taken to be admitted for the purposes of the appeal; since otherwise, if material, the defendant should have been permitted to prove it.

The defendant yielded, under the pressure of danger that the building would be thrown down, to Myers’ paramount title, and so lost the possession of a part of the demised premises. This is a view of the answer as favorable to the plaintiff as the allegations will permit. He gave full notice to the plaintiff, and at - length yielded the possession, and his so yielding must be taken to have been in good faith, compelled by the alleged necessity, else evidence of this should have been received to be submitted to the Jury.

The question is, therefore, reduced to this: Can the dispossession of a tenant, by a third person having a title paramount to the lessor, amount to an eviction, unless it be a dispossession by virtue of a judgment' at law or decree in equity? or in the alternative, must the tenant resist the true owner and defend the possession, by force if need be, at his peril until, by some judgment or legal process, he is ousted ?

The plaintiff here insists that the tenant is bound to maintain his possession and that of his-landlord, until he is dispossessed by virtue of such judgment or decree; and that nothing less than this will constitute eviction under paramount title suspending the rent or excusing the tenant from its payment, however true it be, that such paramount title is in the disseisor, and however ready the tenant is to take the burden of establishing it.

This view of the duty of the tenant calls upon him to resist the lawful demands of one who has a perfect legal right to enter the premises. In this sense, it calls upon him to do what is illegal.

It subjects him to damages in favor of the true owner.

It places him in a situation in which, if by artifice or accident the true' owner can obtain peaceable possession, the tenant must still pay rent to his lessor although he cannot recover possession by action against such owner.

And aside from the provisions of the statutes against forcible entry and detainer, if by any force or compulsion, the owner can obtain actual possession, the tenant is remediless, for he can maintain no action to recover possession against the owner, and yet he must pay the rent. And trespass for a tortious entry upon the premises will wholly fail to protect the tenant in the enjoyment of the premises or compensate him in damages for the disturbance of that enjoyment, for to his action against the owner, the plea of title will be a conclusive bar.

And, at the least, it requires the tenant to engage in a litigation which he knows to be futile, and as the case may be, when the lessor will take no measures for his protection, with the certain knowledge that judgment must be rendered against him, and he be so compelled to yield possession and pay costs and damages for withholding it.

This claim respecting the duty of a tenant seems harsh, and to my mind unreasonable, and yet if it be law, “ the perfection of reason” may not be contemned or disregarded.

Good faith, or the absence of collusion with a third person to deprive the landlord of his possession, should, no doubt, be an essential requisite to the eviction under alleged paramount title; but if in good faith the tenant yields to the better title, and takes the burthen and hazard of proving, when called upon by his landlord, that such title is in fact paramount, there would seem no sufficient reason for requiring-him to bear all the hazards of an illegal resistance to the claim of the real owner, or the bur-then of a litigation with him, knowing that he must be defeated. 5or does it seem altogether reasonable to require the tenant to pay rent for what he has not enjoyed.; to the enjoyment, of which he had no right, and, to which Ms lessor had no title.

The argument which denies the right of the tenant to defend, unless dispossessed by legal process or judgment, is mainly urged as resulting from the rule that a tenant who is put into the possession of the demised premises by Ms lessor, may not deny the title of the latter; or, in the more concise but by far too comprehensive words usually employed, “ a tenant cannot deny Ms landlord’s title.”

The rule itself has numerous qualifications, and the right to prove eviction under paramount title, by virtue of a judgment, of itself shows that where there is such an eviction the rule has no application.

At the common law no such rule existed. The plea " Nil habuit in tenementis” was a good defense to an action for the rent, or to an avowry in replevin for goods taken as a distress. (Gill v. Glasse, Yelv., 227; S. C., Cro. Jac., 312; Aylet v. Williams, 3 Lev., 193; Skinner, 624; Coke Lit., 47, b.; Jordan v. Twells, Rep. tem. Hardwicke, 171; Note to Doe v. Oliver, 2 Smith Lead. Ca., 417,4 Am. ed.)

It is true that when the demise to the tenant was by deed indented, the tenant could not avail himself of that plea, but the reason was not because a tenant could not deny his landlord’s title, but because in such case he was held to have, by the indenture, conclusively admitted the title. He was estopped by the indenture either to plead or prove’ the contrary, not forbidden by any rule existing aside from snob, conclusive admission as the form of his obligation imported. Hence, when the demise was by deed poll, or by parol, (whether written or oral,) the plea was good. (Palmer v. Ekins, 2 Ld, Raym., 1550, and cases last above cited.)

Ho doubt the rule referred to originated in the statute of 11 Geo. II, eh. 19,’ which, by several of its provisions, operated to place tenants under more stringent obligations to their landlords, and protected the latter against fraud and collusion, and two of them bore upon the rule .in question. Some of the provisions of that statute were very early enacted in this State, and have ever since been continued in force. (Act of 1788; 2 Greenl. Ed. of Statutes, p. 115, $ 28, &c.; 1 R. L. of 1813, pp. 143, 525, $ 25; R. S„ pp. 739, [§ 146,] 744, § 3.)

Section eleven declared that an attornment to a stranger should be “absolutely null and void to all intents and purposes whatsoever, ” and the possession of the landlord * * should not be deemed changed, altered or affected thereby; “provided always that nothing herein contained shall extend to vacate or affect any attornment made pursuant to, or in consequence of, some judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord, * * or to any mortgagee after the mortgage is become forfeited.”

And section twenty-two declared that it should “be lawful to and for all defendants in replevin to avow and make conveyance generally, that the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent during the term wherein the rent distrained; for incurred, which rent was then and still remains due; *■' * without further setting forth the grant, tenure, demise or title of such landlord.” * * (Statutes at Large, Pickering’s edition, vol. 17, pp. 187, 191.) And in Sullivan v. Stradling, (2 Wils., 208,) the effect of this last named section of the statute is fully considered, and it is held that in the single case of replevin for goods taken by distress where there has been, an enjoyment by the tenant under the demise, the landlord-was not only not bound to set out or prove his title, but the tenant could not, by plea to the avowry, compel him to take issue upon such title nor bring the title in question. But it is stated to have been admitted on both sides that “Nil luibuit in tenementis” is a good plea in debt or covenant for rent upon a lease not indented. And, as already remarked, the reason why it is not a good plea when the action is on an indenture, is not that the tenant may not deny his landlord’s title, but that having admitted such title by an instrument which is conclusive as an estoppel, he .is precluded thereby.

Another section of the same statute (§ 14) gave an action to the landlord for a reasonable satisfaction for lands held or occupied by the defendant, and if on the trial an agreement or demise (not by deed) appeared, the rent therein reserved should be taken as the quantum of damages to be recovered.

And, while on the one hand the plea “Nil hdbuit in tenementis ” had been justified and sustained on the ground, 'among others, that if true there was no quid pro quo for the undertaking of the tenant to pay rent, so on the other, the equitable doctrine began now to be recognized by the Courts, founded mainly upon the above mentioned statute, that where the tenant had enjoyed the premises under and by virtue of a demise from the plaintiff, he ought not to be permitted to refuse the payment of rent on the mere ground that there is an outstanding title in some third person; and upon the like equitable view of the subject, such a tenant who has been put into possession by his landlord and has enjoyed the same, shall not,-when his term is ended, by the expiration thereof, or by entry for condition broken, be permitted to hold over and resist an ejectment for the recovery of possession by his landlord, by the mere allegation and proof that the plaintiff had not the title when the defendant so entered under him.

And to this effect is a long course of decisions from the case of Sullivan v. Stradling down, both in England and this country. See Doe v. Pegge, (1 T. R., 766,) Doe v. Mills, (2 Ad. & Ellis, 17,) Doe v. Baytup, (3 Id., 188,) Doe v. Fuller, (1 Tyrw. & Gr., 17,) Doe v. Symthe, (4 M. & S., 347,) which were actions of ejectment; and Cooke v. Loxley, (5 T. R., 4,) Lewis v. Willis, (1 Wils., 314,) Agar v. Young, (1 Carr. & Mar., 78,) Fleming v. Gooding, (4 M. & Scott, 455; S. C., 10 Bing., 549,) Rennie v. Robinson, (1 Bing., 147,) which were actions for use and occupation; and Parry v. House, (Holt., 489,) Cooper v. Blandy, (4 M. & Scott, 562,) which were actions of replevin for goods taken as a distress for rent in arrear. And in this State, to the like effect, are Jackson v. Harder, (4 J. R., 203,) ejectment; Jackson v. Rowland, (6 Wend., 670,) ejectment; Lawrence v. Miller, (1 Sandf., 550,) Kenada v. Gardner, 3 Barb. S. C. R., 589; Nellis v. Lathrop, (22 Wend., 121.)

This shows, I think, the origin of the rule in the statute referred to, and in the equitable application of its principles ; and while the right of the defendant to defend, by a mere impeachment of his landlord title, is greatly modified, it is nevertheless clear that the rule is much more narrow and limited than the broad generality of the terms in which it is given would import. It amounts to this: A tenant may not accept possession from a lessor, hold and enjoy under the demise, and then refuse to pay the rent, nor refuse to yield the possession to his lessor at the termination of his lease, and justify such refusal, in either case, by alleging or proving that the lessor under whom he has had such enjoyment had in fact no title.

But this is far short of the proposition that when his holding and occupation under the demise have ceased, however that holding or occupation was terminated, and whether it has ceased in respect to the whole or a part of the demised premises, he may not resist the collection of rent alleged to have thereafter accrued, by proof that his lessor had no title, and his (the tenant’s) possession was lost for that cause.

That where the title of the lessor has expired since the demise, the tenant may allege and prove that fact, and successfully resist the payment of rent or the recovery of possession, is abundantly settled both in England and here. (England v. Slade, (ejectment,) 4 T. R., 682; Doe v. Ramsbottom, (ejectment,) 3 M. & S., 516; Gravernor v. Woodhouse, replevin,) 1 Bing., 38.)

In Rogers v. Pitcher, (6 Taunt., 202,) the rule received ■this further limitation. The plaintiff in replevin had paid rent to the defendant, and so recognized the existence of ' the relation to him of tenant, and yet she was allowed to .•show that such defendant had not title at the time of such payment; the plaintiff had been put into possession by another lessor, and was permitted to show that the attornment to the defendant was made under circumstances which did not warrant it, and that he had not the title. In Hopcraft v. Keyes, (replevin, 9 Bing., 613,) and in Brook v. Biggs, (use and occupation, 2 Bing. N. C., 572,) the defendant was permitted to show that he entered under the holders of the legal title. That the plaintiff obtained an agreement for a lease, and the defendant thereafter paid rent to him, but that subsequently, by reason of his breach of the agreement, his title to the rent failed, the agreement being put an end to. So in Downs v. Cooper, (2 Ad. & Ellis, N. S., 256, replevin,) the defense was that the landlord and a third person, claiming title, had submitted the question of title to a barrister, whose opinion was in favor of the claimant: in Doe v. Watson, (2 Stark., 230,) that the landlord had sold: in Doe v. Seaton, (2 Cr., Mees.. & Ros., 728,) that the landlord’s title had expired; S. P. Neave v. Moss, (1 Bing., 360,) Doe v. Whitroe, D. & R., N. P., 1.) And see Franklin v. Carter, (1 Mann. Gr. & Scott, S. C., 9 Jur., 874,) in which, although the claimant had recovered in ejectment against the lessor, that only made the proof of paramount title in the claimant more easy; the case still shows that the tenant could allege and prove title in the claimant. (See also Den v. Ashmore, 2 Zabriskie N. J. R., 261.)

Similar cases have arisen and been decided in this State, showing that when the landlord’s title has expired this will' be a defense to the tenant. (Jackson v. Rowland, 6 Wend., 670; Lawrence v. Miller, 1 Sandf., 550; Evertson v. Sawyer, 2 Wend., 512; Nellis v. Lathrop, 22 Id., 121;; Giles v. Comstock, 4 Comst., 276.)

Other cases in England and in this and other States of the United States, show that where the lessor had given a mortgage before or after the demise, the title of the mortgagee may be set up as a defense by the tenant, both to an ejectment and to- a claim for rent. The entry of the mortgagee and payment of rent to him is a good defense. (Doe v. Edwards, 5 Barn. & Ad., 1065; Moss v. Gallimore et al., Doug., 279, and notes thereto in 1 Smith’s Lead. Ca., 595, [310]; Doe v. Barton et al., 11 Ad. &.E1., 307; Waddilove v. Barnett, 2 Bing. N. C., 538 ; Pope v. Biggs, 9 Barn. & Cres., 245; Welch v. Adams, 1 Metc., 494; Magill v. Hinsdale, 6 Conn., 465; Stone v. Patterson, 19 Pick., 476; Jones v. Clark, 20 J. R., 52; Simers v. Saltus, 3 Denio, 214.)

Without reviewing these cases in detail, a reference to them will show that the rule referred tó has the limitations above suggested, and that it is not an arbitrary and unqualified rule which forbids the tenant who .has lost the enjoyment of the premises, or who has failed to enjoy under the demise, to show that the landlord is not entitled to rent. And it will be material hereafter also to notice that these cases also show that a tenant is not inevitably compelled to wait for legal process or judgment as his sole protection, notwithstanding the technical definition of the word “eviction” to be presently stated.

Thus, in Gravenor v. Woodhouse, (1 Bing., 38,) the court say, (while recognizing the rule that a tenant may not deny the title of him who has put him in possession,) “the supposed generality of the rule has been departed from in many cases,” citing England v. Slade, (ubi supra,) Doe v. Ramsbottom, (3 M. & S., 516,) and Rogers v. Pitcher, (6 Taunt., 202,) and add: “ A variety of cases may be put, in which a tenant would be excused from paying rent to a person not entitled to it.”

The discussion thus far had, while it may throw light upon the precise point to be decided, does not fully embrace or determine it.

• That eviction of the tenant by a third person under title paramount is a good defense; that such an eviction suspends the rent, is unquestionable, and is not denied in this case.

And that .if the tenant be evicted under such a title, of a part of the demised premises, the rent must be apportioned; and that such eviction is a defense, as to a part of such rent, is equally settled. (Richard Le Taverner's Case, 1 Dyer, 56; Lewis v. Payn, 4 Wend., 423; Lawrence v. French, 25 Id., 443; Peck v. Hiler, 24 Barb., 182, 186; Hegemem v. McArthur, 1 E. D. Smith, 147; Vermilya v. Austin, 2 Id., 203; affirmed on appeal, 11 N. Y. R., 216.)

The very proposition that an eviction by a third person, under paramount title, suspends the rent, affirms that, being evicted, the tenant may show that the evietor had title paramount to that of the landlord; nay, that he must show it in order to • establish his defense.' In the very terms of the rule, then, it is implied that, being evicted, the tenant may deny his landlord’s title. And this he may do by showing that his landlord never had title, or that his title has ceased or expired. But it is, nevertheless, the eviction and not the denial of the landlord’s title, or proof of its failure, which constitutes the defense. The proof of paramount title is in order that the eviction may be a defense, and because eviction by a stranger to the title is no defense. The result maybe thus stated. Eviction under -title paramount is a defense. In order to establish it, the tenant must prove title in the evietor. This may be by proving that the title was in such evietor before the lease and ever since, notwithstanding the incidental result that in such proof he shows that even at the time of the demise his landlord had no' title. Or it may be by proving that the title has been acquired by the evietor since the lease, and notwithstanding in such proof he shows that, although the landlord had title at the time of the demise, that title has ceased. But, in each case, eviction, or what is in law tantamount thereto, must be proved.

Can that eviction be proved otherwise than by judgment or decree; or, in other words, will anything short of-removal from the premises, by or under a judgment or decree, amount to an eviction ?

It will be seen by reference to the cases already cited, that where the lands have been sold under foreclosure or on execution, since the making of the demise, and the title of the landlord is thereby divested, (whether the mortgage was given before or after such demise,) the right 'of the landlord is at an end; and so also that where the title of the landlord was defeasible or terminable by lapse of time, if it was defeated or terminated during the term, the landlord’s right to rent also ceased.

But here the eviction sought to be established as a defense, involves the necessity of proving that the landlord had no title when he gave to the defendant his lease. We can find no sufficient reason for saying that if the tenant is put out of possession without a judgment or decree, he may show that the landlord’s title had expired, and the title of the disseizor was paramount, and yet that, (although he is put out of possession,) he may not show that his landlord never had the title, and so that the title of the disseizor was paramount.

Be it observed that we are not considering whether a tenant may attorn to a stranger. That question is settled by statute, both in England and this State. The point is not on the validity of an attornment, but is, whether, being put out of possession, the tenant may show that this was done under a title, the validity of which he could not impeach, by virtue of a right which he could not legally deny, and by an authority which he could not legally resist; for all this, the tenant in such case assumes to do, and did assume to do in the case now before the Court.

The definition of the term “ eviction,” given by Jacobs, it is true, declares it to be “ a recovery of land, &e., by form of law.” But, conceding that to be the original and technical meaning of the term, it is used, nevertheless, in a modified and more general sense when applied to eviction by the landlord himself, and also to a breach of the covenant for quiet enjoyment, and of the covenant of warranty. (See 1 Saund., 202, 204, note; Upton v. Greenlees, 17 Com. Bench R., 51; several of the cases already above cited, Rawle on Covenants, Tit. “ Covenant for Quiet Enjoyment,” and “Covenant of Warranty and the breach thereof.”)

In Hopcroft v. Keys, (9 Bing., 613,) where the landlord’s title was a defeasible one, the tenant was permitted, in answer to an avowry of taking as a distress for rent, to show that the landlord’s title was defeated: that the real owner entered for condition broken, but without process, and turned out all in possession, and afterwards made a new agreement with the tenant, under which he was in possession at the time of the distress. This case tends strongly to show that what is called eviction by title paramount does not mean necessarily and solely eviction by legal process or under a judgment or decree.

In Upton v. Greenlees, (17 Com. Bench R., 64,) Jervis, Ch. J., said: “ The term eviction is now properly applied to every class of expulsion or amotion,” &e. It is true that there the eviction alleged was by the lessor himself, but no good reason is apparent for withholding its application from a forcible expulsion or amotion by the true owner which the tenant cannot successfully resist or pre-" vent.

And in Mayor of Poole v. Whitt, (15 Mees. & Wels., 571; 16 Law J., 229,) where eviction under paramount title was pleaded as a defense to an action for rent, although the defendant failed on the ground that the title proved was not paramount, but a title to the reversion only, yet Oh. Baron Pollock, says: “ If a party having a good right to eject the occupier of demised premises, goes there and demands to exercise that right, and" the tenant says,

‘ I will change the title under which I now hold and will consent to hold under you,’ that, according to good sense, is capable of being pleaded as an expulsion.”

And in Evertson v. Sawyer, (2 Wend., 507,) Ch. J. Savage, asserting the rule that in an action for use and occupation the tenant cannot deny the title unless he first • divests himself of possession, held, following the opinion of Lord Campbell, in Balls v. Westwood, (2 Camp. 11,) that the tenant might disclaim the title under which he entered, and take a new lease from the purchaser at Sheriff’s sale; and although this would be an attornment void under our statute, yet it would operate as a defense to the claim for rent.

And in Greeno v. Munson, (9 Verm., 37,) North v. Barnum, (10 Id., 220,) it was held that, the tenant acknowledging the title of another in repudiation of his landlord’s title, his possession becomes adverse and the statute of limitations begins to run in his favor.

The precise point now before us, that is to say, whether the tenant could allege and prove dispossession (without a judgment or decree) by a third person, under title paramount, was considered and decided by the Supreme Court of Massachusetts, in Morse v. Goddard, (13 Metc., 177.) It was there held that it is not enough for the tenant to prove an outstanding title to avoid the payment of rent,.but he must show an ouster or eviction under that title; but an eviction under a judgment is not necessary. An actual entry by one having a paramount title and present right of entry is an ouster of the tenant, and the latter is not bound to hold unlawfully and subject himself to an action, and is not, therefore, bound to resist such an entry. In that case, the Court went much further than this, and further than necessary to the point now under consideration, viz., that a judgment or decree is not essential to such an ouster as will excuse the payment of rent.

The tenant there had voluntarily yielded to the claim of the true owner on being threatened with an ejectment, and after notice to his landlord of the claim, had consented to pay rent to the claimant. The charge to the Jury was, “ if the defendant, bona fide, yielded possession of the premises to the real owners, to prevent being expelled, and the plaintiff (the landlord) had notice of this, and if the defendant had satisfactorily proved that the claimant owned the estate by a good title, and had a right to take immediate possession at the time, * * * such yielding of possession was equivalent to an actual ouster, and was competent evidence in defense to the plaintiff’s claim for rent accruing after such yielding of possession.” And this charge was fully sustained.

The defendant in such case has the burthen of. proving, not only that the claimant’s title is paramount to that of the landlord, but that he acted in good good faith.

If the absence of any statute in Massachusetts, forbidding an attornment to a stranger, gave the decision a larger scope than would be proper here, the case, nevertheless, is a direct authority that the tenant is not bound to wait for a judgment or decree, nor resist by force a claimant having the actual title and a present right of entry. And the decisions in Fitchburg Co. v. Melven, (15 Mass. R., 268;) and Smith v. Shepard, (15 Pick., 147,) justify a tenant in yielding to the entry of a mortgagee, under a mortgage given before the demise, and hold the entry of such mortgagee an eviction, and, as such, a defense to an action of covenant for the rent. And so also in George v. Putney, (4 Cush., 355,) the doctrine was asserted that a lessee under a defective title may yield the possession without awaiting a judgment or decree.

In the American notes to Moss v. Gallimore, (1 Smith’s Lead. Ca., 595, [310],) it is said, “ no estoppel or form of action can deprive the tenant of his right to show an eviction by title paramount, and such eviction must always suspend subsequently accruing rent. How, it is perfectly well established, that to obtain the legal right given by an eviction, it is never necessary to wait for an ejection by form of law.”

In Blair v. Claxton, (18 N. Y. R., 529,) a partial eviction was held not only to entitle the tenant to an abatement of the rent, but that it might be shown as a counterclaim by way of recoupment, as an equitable defense, and would entitle the defendant to damages for a*breach of the covenant for quiet enjoyment. In that case the claimant of the elder title had, it is true, established such title as against the landlord, by a decree; but the tenant was not evicted by the decree. He was evicted or ousted by act of the party having paramount title; the existence of the decree, (conclusive as against the landlord,) only furnished the tenant with the ready means of proving that such title was in fact paramount, and so this case in effect affirms the views above expressed.

These considerations and a review of the cases above referred to, seem to us to show, that the tenant, being put out of possession, may defend an action for the rent by proof that he was ousted by one having a title paramount to that of the landlord, although the ouster was not by virtue of a judgment, decree or any legal process;—such tenant taking the burthen of proving that he acted in good faith, and that such title was in fact paramount;—and that the proof offered in this case would have established such an ouster, and should have been received.

2. If this case be considered, secondly, upon the question whether the facts alleged do not constitute a breach of an implied covenant for the quiet enjoyment of the premises, then there are other cases, as well in this State as in other of the United States and in England, bearing upon this subject. The lease here was for three years only, and was under seal. If it was doubtful whether leases for years were embraced in our statute, which declares that “no covenant shall be implied in any conveyance of real estate;” (1 R. S., 738, § 140;) and the ease of The Mayor, &c., v. Mabie, (13 N. Y. R., 151,) contains the opinion that such leases are not so included; it must be taken, as settled by that case, that leases for a term not exceeding three years are not. (Edgerton v. Page, 20 N. Y. R., 286.) If not, there was an implied covenant by the plaintiff for the quiet enjoyment of the demised premises, and the question arises what constitutes an eviction amounting to a breach of that covenant. And on this question the modern doctrine is that such a covenant is broken, and the breach may be proved by the covenantee, by an expulsion by one having paramount title without any judgment or decree. Such is the doctrine clearly derivable from what is said on this topic in Rawle on Covenants, and the numerous cases cited there; and, so far as we can discover, the cases which hold the covenant of warranty broken by such an expulsion are equally in point. (See also Blydenburg v. Cotheal, 1 Duer, 196, and cases cited.)

Platt on Covenants,. in treating of the action on the covenant for quiet enjoyment, states (p. 328) where an ejection has actually taken place, in assigning a breach, it is sufficient to allege that, at the time- of the demise to the plaintiff, A. B. had lawful right and title to the premises, and having such lawful right and title entered and evicted the plaintiff, without showing that he evicted him by legal process, citing Foster v. Pierson, (4 T. R., 617,) Hodgson v. East India Co., (8 Id., 278.) The question discussed in these cases was oné of pleading, but, in the first, Btjlleb says it is the same as saying “he entered bylawful right and title,” and at the trial the plaintiff would have failed in proving this allegation unless he had shown a right of entry in A. B.

And in 2 Stephens’ Hisi Prius, 1084, it is said this covenant will not extend to a tortious eviction or ejectment by a stranger, “but if the stranger claim by older title than the lessor’s, the lessee may have covenant against the lessor, for he then can have no redress against the stranger, whose title is good in law.”

And in Hamilton v. Cutts, (4 Mass. R.,349,) which was an action for breach of warranty, it was held that the tenant may yield to a dispossession without losing his remedy on the covenant. But he consents at his peril. If the title to which he has yielded be not good, he must,abide the loss; and in a suit against his warrantor the burthen of proof will be upon the plaintiff. So in Drew v. Towle, (10 Foster, 537,) the Court held that the coven'antee had an undoubted right, upon being satisfied of the invalidity of his title, to abandon the possession of the premises, and thereby avoid the necessity of litigation and its- attendant perplexities and expenses. He owed the covenantor no duty to remain in possession and sustain the burthen of defense when the title was invalid; * * the right of the covenantee was, at any period, to give up the possession to the rightful owner, upon • claim made; he was not bound to seek redress through a litigation which might be fruitless with the party having the title. (George v. Putney, 4 Cush., Miss. R., 354.)

In Parker v. Dunn, (2 Jones, N. C. R., 203,) it is held that a covenant for quiet enjoyment is broken, when the covenantee is entered upon and dispossessed by one having superior title, though the entry is not made'under process. (And see Coble v. Wellborn, 2 Dev., 388; 2 Hilliard on Real Prop., 382.)

In Stone v. Hooker, (9 Cow., 157,) the above case of Hamilton v. Cutts is cited by Mr. Justice Cowen and approved as “ sound.”

In Lansing v. Van Alstyne, (2 Wend., 563, 565,) Ch. J. Savage concluded that the eviction which would alone avail as a defense to the claim for rent, or as a breach of the covenant for quiet enjoyment, must be by due process of law, and yet the cases cited, and the inference therefrom, appear to lead to the opposite conclusion ; and, subsequently, in Greenvault v. Davis, (4 Hill, 645,) Bronson, Justice, declares that he has met with no case where the point was so adjudged; and he adds that the remark of Ch. J. Savage, in the case mentioned, was not necessary to the decision of the case, nor the point decided; and thereupon it was held that to maintain an action on the covenant of warranty or for quiet enjoyment, that the eviction must be lawful, yet it need not be by process of law. (See the cases there cited, and the observations on Hunt v. Amidon, Id., 348.)

Again, in St. John v. Palmer, (5 Hill, 599, 602,) the same rule is asserted, viz.: “ It is not necessary that he ” (the covenantee) “ should be evicted by legal process; it is enough that he has yielded the possession to the rightful owner.” And in Fowler v. Poling, (6 Barb. S. C. R., 165,) the subject is discussed at length by Edmonds, J., and the rule re-affirmed. (White v. Whitney, 3 Metc., 81; Sterling v. Peet, 14 Conn. R., 244; Averill v. Wilson, 4 Barb. S. C. R., 180 ; Mitchell v. Warner, 5 Conn. R., 521, 522 ; Blydenburg v. Cotheal, 1 Duer, 196.)

In this view, also, the evidence .offered by the defendant was admissible, and should have been received.

The judgment should be reversed and a new trial ordered, the costs of the former trial and of this appeal to be costs in the cause, and abide the event.


author: By the Court—Robertson, J.

text:
    John B. Dingeldein, Plaintiff and Respondent, v. The Third Avenue Railroad Company, Defendants and Appellants.
    1. Where an unincorporated railroad company, desiring to- control the construction of a public sewer under their track, procured the contract with the city for its construction, in the name of the plaintiff one of their members, which required him to do,jit within a fixed time, and to remove obstructions from, and facilitate the preservation- of, the track; and then employed him to do the work, agreeing to pay him his expenses over the contract price, and an allowance for his services, and, it being understood that the time in which, by his contract, he was bound to complete it, was too short, he agreed with them to do it in the shortest possible time, and also in a manner consistent with their interests, and not to stop the running of the cars.

      Held, that this agreement with the Company was not illegal as against public policy. »
    2. A corporation was subsequently created to operate the railroad, and the Company conveyed their property to the corporation. The grant was, in-terms, subject to the payment the Company had agreed to make to the plaintiff, but contained no covenant to pay it; and the plaintiff went on with the work, with the knowledge of the corporation, and without objection on their part, and their Superintendent, with the knowledge of the President, gave directions as to keeping the track clear.

      Held, that these facts did not make the corporation- liable for the plain tiff’s-compensation. To charge them,, there must be- either an entire novation of-the contract, to which the plaintiff, the corporation and the unincorporated company should be parties;' or a new promise on the part of the corporation should be shown.
    3. An assignment under seal, expressed to be subject to the payment of a debt to a third person not a party to the instrument, where the assignee does not promise to pay, and the debt to be paid, is not a lien on the thing assigned, does not entitle such third person to maintain an action therefor against the assignee.
    4. It seems that illegality in a contract sued on, though shown by the testimony, cannot avail the defendant, unless it is alleged in the pleadings ; and that an allegation in the answer that the contract was illegal, coupled with an enumeration in the same paragraph, of specific grounds of illegality, does not entitle the defendant to prove any ground of illegality not so specified.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard, October 15, 1861;

    decided, December 28th, 1861.

      This was an appeal by defendants from a judgment in favor of the" plaintiff, entered upon the report of Charles P. Kirkland, Esq., Eeferee, to whom the cause was referred for trial.
    • The plaintiff sought to recover, in this action, the excess of his expenditure in building a public sewer in the Third Avenue, one of the public streets of the Oity of Hew York, beyond the sum received by hito therefor, from the corporation of that city.
    The following are substantially the facts set out in the complaint: Prior to October, 1853, a private association in the City of Hew York, of the same name as the defendants, and of which the plaintiff was a member, owned a railway laid down in the Third Avenue. Such association appointed a committee, of whom- the plaintiff was one, to prevent obstructions on the road. The officers of the city corporation awarded to a Mr. Benjamin, who was one of such association, in June, 1853, a contract for building a public sewer under such railway, and the association passed a resolution “ to have such sewers constructed on the most favorable terms to themselves, and “ to pay "any deficiency in the cost of such work, above “ what the corporation might agree to pay.” Benjamin failed to give the necessary security, and the plaintiff, by the authority of the rest of the associates, made a contract with such corporation to construct the sewer, and such associates agreed with him, to reimburse him his actual expense of so constructing it, with a reasonable sum for his services, less the amount to be received from the city corporation, and “ he agreed, not to obstruct the running of “ their oars during ihe work.” The plaintiff commenced the construction of such sewer in July, 1853. The defendants were incorporated in October following. On the day of their incorporation the members of such association,-and other persons interested in such railroad, as parties thereto of the first part, and the defendants, by their corporate name as parties thereto of the second part, executed an instrument under seal, by which agreement the. parties thereto of the first part sold to the parties thereto of the second part, for upwards of a million of dollars, a grant from the Oity of New York to certain of such associates, made in January previous, and the railway constructed by virtue of such grant, with the appurtenances, except certain real and personal estate, subject to the terms and stipulations of such grant, which the parties thereto of the second part covenanted to perform, and subject also to the payment of all the money which such association had resolved to pay on account of the beforementioned sewer, and also to other burdens; as to all of which there was no covenant to pay. The plaintiff completed the sewer in Atigust, 1854. During its progress, and before it was completed, the defendants requested him to remove earth thrown upon the railway during its construction, and promised to pay him all sums expended by him in building such sewer and keeping the track clear, with a reasonable sum for his services, less the amount paid by the city corporation. The complaint, after alleging these matters, then set forth the amount of the plaintiff’s expenditures in building such sewer, alleged what was a reasonable sum for his services, admitted the receipt from the city corporation of a certain sum, and demanded judgment for the-residue.
    The answer of ..the defendants controverted the amount alleged in the complaint to have been expended in constructing the sewer mentioned therein ; it denied the making of any such agreement with the plaintiff, by the partnership as is therein alleged, and alleged that he agreed to waive all claim against it, and to receive the contract price as full compensation; it denied that the defendants required the plaintiff to remove the earth from such sewer, as stated in the complaint, and that they agreed to make up to him the deficiency in the contract price. It alleged that the plaintiff did not complete such sewer until November, 1854, and did not perform his contract according to its terms, and did unnecessarily obstruct the cars in passing on such road. It also set up, by way of counterclaim, damages from the non-completion of such work in ninety days. • It also claimed that seven hundred and fifty dollars of the amount expended by the plaintiff was paid to the City Inspector for the time of constructing the sewer, which was unnecessarily long; and alleged other damages and expenses to the defendants, by reason of such unnecessary delay, which it claimed to set off. It also interposed a set-off for goods sold and delivered by the defendants to the plaintiff, and also an indebtedness from the partnership mentioned in the complaint to the defendants for money lent, and that the payment of such indebtedness was, by agreement, a condition precedent to the performance of the agreement under seal, set out in the complaint, of both which facts' it averred the plaintiff had knowledge.
    The answer set up a separate and further defense in its seventh paragraph; in which the defendants alleged “ that “the partnership (before spoken of) were never legally “ bound to pay the plaintiff any money for the construction “ of such sewerthat the contract with him, or any note thereof in writing, was not signed by the association; that there was no consideration for it; that the sewer was constructed for the corporation of the City of Hew York, and the payment for it was solely their debt.
    A reply was put in by the plaintiff to the defendants’ answer, which denied unreasonable delay by him in performing the contract, and any damage thereby to them, and any indebtedness by the plaintiff to them, as alleged in such answer, and alleged that any delay by the plaintiff was permitted by the original partnership, and was for their benefit.
    * Ho issue was formed on the matters contained in the seventh paragraph of the answer, by any subsequent pleading.
    The issues in the action were ordered to be tried by a Referee; and on thé trial, the contract between the plaintiff, the corporation of the City of Hew York and its Croton Aqueduct Department, made in June, 1853, for the build-

      ing of a sewer from 49th to 53d street, in such part of the Third Avenue as that Department should direct, was put in evidence.
    By the contract the work was to be begun in July following, and completed in a hundred days, exclusive of holidays, and any other time during which its prosecution was suspended, according to such agreement. It contained, also, a provision that in case of the failure of the work to advance according to the agreement, so as, in the opinion of the Aqueduct Department, to be unnecessarily delayed, that Department was to have the right to carry on the work, deducting the expense from any money due to the plaintiff. The only part of the work, for the suspension of which, provision was made therein, was the masonry, which was to last from the 1st of December as long as the Aqueduct Department should think proper.
    . The shape, size, materials, workmanship, direction and finish of the main work, with its appurtenances, were fully detailed in the contract. It provided, also, for the support of gas and water pipes, and the deposit of them and gutters, also of stones, rock, sand and earth, during the work, and removing the latter when the work was completed; also for the size of the trenches, and the length of their sections in advance of building the sewer; the street-piling and refilling, and the subsequent repairing and regrading the surface of each section as completed, and immediate removal of the earth, sand and rubbish therefrom.
    The plaintiff, in and by the contract, agreed “ to preserve “from obstruction all rail tracks which might be affected by “the prosecution of” such “work, and also to afford the “ necessary facilities to the companies owning them, or to “ their agents, in their preservation of the same from injury, “ without extra charge therefore

    On the trial a witness, examined on behalf of the plaintiff, testified “ that it was part of the understanding and “agreement” of the association with the plaintiff, made simultaneously with their promise to reimburse his expenditures on the sewer in question, “ that more time would “ be required to construct it than was given him in the “corporation contract, but he was to do it in the shortest “possible time, ajst> in such a way as not to interfere with “or interrupt the running of the railroad cars.” On a motion to dismiss the complaint, made afterwards, one ground urged was that such a contract violated public policy..
    On the trial it was admitted that subsequently to the date £>f the transfer of the railway and its appurtenances to the defendants, their superintendent gave the plaintiff, while carrying on the construction of the sewer, directions about carting away dirt and keeping the track clear, and their president told the plaintiff “it would make no dif“ference to him as the defendants would have to pay him “for building the seiver,” &c.
    Several witnesses examined on the trial differed as to the time necessary for the building of such sewer; it actually took over a year for its completion. Some evidence was also given as to the increase of the labor of the plaintiff in consequence of his efforts not to interrupt the running of the cars. A question, to an expert, as to “ whether the “laying of the tracks and operating on the road in this “case were necessarily obstructions to the building of the “sewer,” was excluded. The plaintiff, however, testified that the increased expense to him was caused by his being obliged to cart away dirt and bring ifc back, to prevent its interrupting the cars.
    The Referee, in his report, did not pass upon the existence of any promise of the defendants to pay the plaintiff, other than that supposed to be made by the instrument of October, 1853. His report was also silent as to- there being any difference of time in building the sewer, by reason of the means used to prevent any obstruction of the running of the railway cars of the defendants, or in the disturbance of the highway thereby, for a longer time than that fixed in the corporation contract, or there being a disturbance of the highway as long as the sewer was in the course of construction.
    Among the facts, however, found by the Referee’s report were the following:

      First. An understanding between the plaintiff and the association, contemporaneous with their contract, “That “ more time would be required for building the sewer in a “ manner consistent with the interests of such association, in “ using such road, than was fixed by the city contract.”

      Second. An agreement between the same parties, that the plaintiff should finish the work “in as short a time as “possible, but so as not to interrupt the running of the “ cars.”

      Third. Knowledge of the work, during its progress, by the agents and officers of the defendants.

      Fourth. A direction to the plaintiff by the superintendent of the defendants, during the progress of the work, to cart away dirt, and a knowledge by the President of the defendants of such direction.

      Fifth. The absence of any complaint by the association or the defendants, of the work, or any delay in completing it.
    The Referee applied to such facts, among others, the following principles or conclusions of law:
    I. The agreement between the plaintiff and the association, mentioned in the complaint, did not violate any principle of public policy.
    II. The defendants became bound to perform such agreement by the instrument of October, 1853.-
    III. The defendants were also so bound by perceiving, without dissent, the action of the plaintiff,' in constructing the sewer in question.
    The defendants filed exceptions to such report, both for its finding certain facts, and its omission to find others, as well as the principles of. law applied to such facts in the report.
    Judgment was entered in favor of the plaintiff for the amount found due by the Referee, being for the excess of his expenditures beyond the contract price, from which judgment the defendants appealed to the General Term.

      Charles O’Conor, for the defendants, (appellants.)
    I. There was ño privity of contract between the corporation and the plaintiff. His claim, if any, is against the partnership.
    II. The alleged agreement between Dingeldein and the partnership was a conspiracy to violate the law. 1. One feature of it was that, by deceit of the public authorities, the job should be awarded to the plaintiff, at a compensation higher than that specified in the lowest bid. 2. The alleged agreement contemplated the disturbance of the Third Avenue, for a long period, merely to subserve the private interest of the Railroad Company, a. Public highways are merely for passing and repassing. Any other use, without express license from competent authority, is a public wrong. (Davis v. The Mayor, &c., 4 Kern., 524; Dovaston v. Payne, 2 H. Black., 527; S. C., 2 Smith’s Leading Cases, 90, 28 L. Lib., N. S.; Rex v. Cross, 3 Camp., 226; Rex v. Jones, 3 Camp., 230; 2 Rolles Abr., 137, Nuisance B.; 3 Bac. Abr., 497, Highways E.; Commonwealth, v. Passmore, 1 Serg. & R., 219; King v. Russell, 6 East, 427; Rex v. Carlile, 6 Car. & Payne, 636; People v. Cunningham, 1 Denio, 524; 14 Conn., 317; 6 Barn. & Cress., 566; 1 Dall., 150; Fowler v. Sanders, Cro. Jac., 446 ; 3 Com. Dig., 27, Chimin A, 3.) b. A contrivance by private individuals to prolong, for their private advantage, the time of the disturbance caused by the public work, was a trespass on public right, and a violation of public policy.
    III. All agreements to violate law, or to contravene the legitimate policy of the government, are vicious, and no right can accrue from them. (Bell v. Leggett, 3 Seld., 176; Spinks v. Davis, 32 Mississippi R., 152; Broom’s Maxims, 349, 50th Law Lib., 222; Merryweather v. Nixan, 2 Smith’s Leading Cases, 297, and note; 2 Kent’s Com., side paging 466, 467, and notes; American Jurist, (Boston,) vol. 22, pp. 266, 270; Bartle v. Coleman, 4 Peters, 188; 3 T. R. 552; Satterlee v. Jones, 3 Duer, 116, 117; Wall v. Charlick, N. Y. Leg. Obs., vol. 8, p. 230; Cunningham v. Cunningham, 18 B. Monroe, 19; Sumner v. Brady, 1 H. Bl., 655; Hatch v. Mann, 15 Wend., 45; Gray v. Hook, 4 Comst., 454; Davison v. Seymour, 1 Bosw., 92; Eddy v. Capron, 4 Rh. Isl., 394; Ingram v. Ingram, 4 Jones N. C. Law, 188; Greene v. Godfrey, 44 Maine, 25; Bellows v. Russell, 20 New Hampshire, 427.)
    IV. The alleged agreement was manifestly illegal, and therefore the judgment should be reversed.

      John W. Edmonds, for the plaintiff, (respondent.)
    I. The liability of the defendants depends on the following considerations: 1. Their contract of 8th Oct., 1853, to pay all the money which the partnership were, by a resolution, bound to pay; 2. The resolution of the partnership of 21 June, 1853, that any deficiency in the cost, over and above what the corporation pay, shall be paid by them; 3. The evidence that the bid of plaintiff was for the partnership; 4. The bids themselves; 5. The surrender of Benjamin’s bid, and the falling back on plaintiff’s, which was for the partnership; 6. The agreement of the partnership to make plaintiff whole; 7. The agreement of the defendants, after the transfer to them, to make him whole; 8. The recognition by the defendants while the work was going on; 9. The acquiescence of the defendants in such liability, and their giving directions as to the work, in, reference to their convenience, and not plaintiff’s, and to the increase of cost to plaintiff.
    II. Under such circumstances, the plaintiff could recover even though there had been no privity of contract between him and the defendants, or any consideration passing from the plaintiff to the defendants. (2 Pars, on Cont., 303, and notes i. m.; Ib., 308; notes v. and w.; Barker v. Bucklin, 2 Denio, 45; Cumberland v. Codrington, 3 Johns. Ch. R., 254; Farley v. Cleveland, 4 Cow., 439; S. C., in error, 9 Id., 639; Schermerhorn v. Vanderheyden, 1

      Johns. R., 139; Del. & Hud. Canal Co. v. Westchester Bank, 4 Denio, 97; Lawrence v. Fox, 20 N. Y. R., 268; 1 Story on Cont., § 451; Hall v. Boardman, 27 Barb., 82; Bohanan v. Pope, 42 Maine R., 93; Taplin v. Packard, 8 Barb., 220; Phillips v. Berger, 8 Barb., 527; Forman v. Stebbins, 4 Hill, 181.)
    III. But, in this case, there was privity of contract between these parties, and a consideration moving from plaintiff and defendant. The work was, by defendants’ order, done so as to be more expensive to plaintiff, and beneficial to defendants. (1 Story on Cont., § 450; Wilson v. Coupland, 5 B. & Ald., 228; Tipper v. Bicknell, 3 Bing. N. C., 710; Webb v. Rhodes, 3 Id,, 734.)
    IV. Under the Code, the action can be brought by the plaintiff as the real party in interest. (Code, § 111; Grinnell v. Schmidt, 2 Sandf. S. C. R., 705; Savage v. Bevier, 12 How. Pr., 166.)
   By the Court—Robertson, J.

Although what the plaintiff, by the terms of his agreement with the association mentioned in the complaint, agreed with them to do, was to furnish certain materials and do certain work, that work was not of a kind they could have given him authoity to do, nor was it peculiarly for their benefit, nor did the structure thereby produced become their property, or pass into their possession; the association did not even agree to pay him either a fixed price or the reasonable worth of the work and materials. His entering into a separate contract to do such work for those who could authorize him to do it, and whose property the sewer became when finished, although at the request of the association, could only raise an implied obligation to indemnify him; and, as an express agreement was made to do so, as well as a previous request to him to do it, it placed him precisely in the position of a mere agent, deriving no personal benefit from the agreement, except the stipulated compensation for his services in superintending the work. That position excluded the application of any rules of law which might create a liability out of mere work and labor, undertaken at the request of one person, which benefited another, and was directed and accepted by the latter, and also took the case out of the statute of frauds.

It is claimed, however, on the part of the defendants, that such agreement was illegal, because it was accompanied by a condition that the plaintiff, in doing the required work, was not to interfere with the running of the cars on the railway, and also an understanding or expectation that more time than was allowed by the corporation contract would be required to complete such work “ in a manner consistent with the interests of the association in using such road,” and this too, notwithstanding such securing the use of the road, was not established to have necessarily prolonged any disturbance of the highway, and although there was no evidence to show that consulting the interests of such association prolonged the time necessary for doing the work.

Such a condition, if .illegal, undoubtedly would infect the contract by rendering the consideration for the defendants’ promise a contract which violated public policy; and nothing could save the undertaking to indemnify the plaintiff, but an abandonment of the illegal contract, and the formation of a new one, excluding the illegal promise which formed the consideration. The first question, therefore, is, whether such promise was illegal; it was if it amounted to an agreement to obstruct the highway, either without authority, for an illegal purpose, or for a longer period than was necessary. (Dygert v. Schenck, 23 Wend., 446; The People v. Cunningham, 1 Den., 524; Same v. Lambier, 5 Den., 9, and cases cited by counsel for defendants; Renwick v. Morris, 3 Hill,. 621; S. C., 7 Hill, 575.) The times and places of constructing sewers, vaults and drains, are entirely under the control of the corporation of the City of New York, (Wilson v. Mayor of New York, 1 Den., 595,) and no one can lawfully interfere with the public streets, for such purposes, except by their authority. In addition to this objection of illegality, it is claimed there is another which vitiates the contract in question, because the plaintiff not only agreed, in order to benefit such association, to disturb the highway longer than was allowed by the corporation contract, but also to violate the terms of that very agreement as such. I apprehend that the part of the latter, which consists of the plaintiff’s undertaking, is a mere private contract, the violation of which subjects him to damages therefor, either generally or according to the terms of such agreement, and that it is no more sacred than any other contract for work and labor between private individuals; it may, therefore, be laid aside in considering the validity of the agreement in question.

If, however, this be an agreement to disturb the public highway longer than was lawfully authorized, so as to promote the interests'of the association at the expense of the public, it is invalid. (Merryweather v. Nixan, 2 Smith’s Lead. Cases, 297, and note; Gray v. Hook, 4 Comst., 454; Bell v. Leggett, 3 Seld., 176; Davison v. Seymour, 1 Bosw., 92.) Objections are, however, raised to the application of this principle, arising as well from a defect of evidence, as from its insufficiency to sustain the form of the Beferee’s finding; and arising even from the pleadings.

The defendants have only alleged in their answer generally that the original agreement was. illegal, and in the same paragraph proceed to enumerate certain legal reasons why it was void, such as being a collateral undertaking and not in writing, and as being without any consideration by reason of the contract with the corporation; the whole, apparently, stated as one defense. I do not understand that a general allegation that a contract was illegal would enable a party to prove every fact that might make it so; it is rather the averment of a legal result than a fact, and the enumeration of legal objections in the same paragraph would seem to be an explanation of what was meant by such illegality. The Code requires defenses to be separately stated, (§ 150.) When so stated they are to be treated as separate pleas would under the old system. (Cobb v. Frazee, 4 How. Pr., 413; 3 Code R., 43.) The paragraph in question could clearly, under that system, only amount to a plea of the special matters set up in it.

But it was contended that if the contract could not be proved, without proving the whole of it, including the illegal part, such illegality could be taken advantage of, without pleading it; but I am unable to understand why. The defendant could not truly deny the making of the contract set out in the complaint, if made, and he must either set up the illegality or allow a default. If he untruly denied the making of the contract as set out, that should not enable him to avail himself of the accidental fact of the illegality appearing in the testimony. If the plaintiff could not set out the contract, without showing its illegallity, advantage might be taken of it on demurrer, and pleading other matters would possibly not deprive the defendants of the right of moving to dismiss the complaint on that ground; but it would certainly be a novelty to allow, in an action on a promissory note, under an answer denying its making, proof of usury, or that it was given for money lost at play, or any other illegal consideration, without any allegation to that effect in the pleadings.

But even if such illegality were set up in the answer, or the parties had tacitly agreed, by admitting testimony, to try the question, the Referee’s statement of the understanding, on which the defendants rely as making the contract in question illegal, is not borne out by the testimony. That proves that the parties thereto understood, which amounts to no more than that they expected, that it would take longer to build the sewer than was allowed by the corporation contract, which might very well be, without affecting the agreement with the plaintiff; and they only added that the plaintiff was to do it in the shortest possible time, and in such a way as not to embarrass the use of the road; both perfectly legitimate agreements, and the last substantially contained in the corporation contract. As it turned out, it did take longer than the contract time, and such deviation was ratified by the city authorities, who paid the plaintiff for his work. The Referee, however, in his finding annexes to the expectation of the parties, that the time in the corporation contract would not be sufficient, a qualification which does not appear at all in the testimony, viz., its being done in a manner consistent with the interests of the association in using the road, and he also, by using the exceptive particle “ but,” clogs the undertaking of the plaintiff to do the work as soon as possible, with the condition that he was to so do it as not to interrupt the use of the railway; while, according to the testimony, that was only an additional stipulation, producing a manifest distinction, so far as the question of illegality is concerned.

There may be a wide difference between the time to be occupied in completing a given work, when it is conducted so as not to prejudice other interests, and when it is conducted without regard to them; and this is equivalent to a certainty, in its effect on a contract,, when it is assumed by contracting parties to exist. But even the understanding, as stated by the Referee, might not make the contract illegal, for tile plaintiff’s corporation contract requires him to preserve all rail tracks from obstruction, and gratuitously afford facilities for their preservation ; this was as incumbent on him as to build the sewer at all; and he had no right to neglect such obligation, merely in order to finish it by the appointed time; if, by observing it, he exceeded that time, it was a matter of which the city authorities were to avail themselves, and exact the penalties provided for in the contract; or they might, as they actually did, extend the time; so that even if the understanding were as stated by the Referee, it would not avoid the original agreement.

The testimony, however, narrows this point still farther; it simply establishes an understanding that the sewer would require a longer time for building than was specified in the plaintiff’s contract; but that he should build it as soon as possible, and so as not to stop the running of the cars, a perfectly innocent undertaking, and not tainting any agreement with illegality; A knowledge by both parties that the plaintiff had undertaken an impossibility, and an agreement that he should carry out his obligations as nearly as he could, and without injury to the association, coiild hardly be perverted into anything unlawful. The result shows that these expectations were not unfounded, and there is no evidence that any one was prejudiced by the parties’ agreement.

So far as regards the question of illegality, the Eeferee was therefore correct in his conclusion, for the reasons already stated; but a more serious question arises, which was presented, but not fully argued, by the counsel for the defendants, as to their liability in any way for the contract of the association. The Eeferee places such liability, first, upon the written instrument of assignment of October,

° 1853, and their omission to dissent, while they were continually acquainted with the plaintiff’s work on the sewer and the neighboring street. The facts he relies on to sustain such conclusions are, the knowledge by the defendants of the plaintiff’s work as it progressed ; the presence of their officers on the road during that time ; the direction by then Superintendent to keep the track clear; the knowledge by the President of such direction, and the failure either by the partnership or the defendants to complain of such work or any delay on it.

The plaintiff’s construction of the sewer was under a contract with the city corporation, by their authority, and to be paid for by them, and the sewer became their property when completed; the defendants could not have legally interfered with such construction; the plaintiff was not their agent, had made no contract with them, and any objection on their part would have been perfectly idle; if-they had made it, and the plaintiff had stopped work in consequence, he would have been liable for all the penalties of his contract with the corporation officers, without any right of indemnity from any. one. Their silence, therefore, is not such an acquiescence as to create a liability on their part to indemnify the plaintiff, any more than the silence of any person owning property in the neighborhood. The misapprehension of law involved in the report arises from confounding the relations of the parties with those which might arise from the performance of work for the partnership, accepted by the defendants and beneficial to them; whereas the work was performed by an agent of the partnership for a third person, under a promise by the firm to indemnify him for loss, and the defendants had no right to interfere either to accept or reject it, and the benefits were no greater to them than to a thousand others. Under such circumstances nothing but an entire novation of the contract to which the plaintiff, defendants and partnership should be parties, or a new promise by the defendants, for a new consideration, would make them liable.

I apprehend the assignment by the partnership to the • defendants of property in October, 1853, could not operate as such a novation, because the plaintiff was not a party to it, and did not assent to any substitution of the defendant, as his debtors, in place of the partnership. So far as it contains any stipulations by -the defendants, it is under seal, and any action could only be on such stipulations as covenants in their name, as they are the parties interested. It is true that if such instrument contained words implying an undertaking by the defendants to pay the money due the plaintiff, the case would come within the language adopted by Judge Comstock, in the case of Belmont v. Coman, (22 N. Y. R., 438,) and the acceptance of the transfer with such words would raise a promise; but it does not, and only has the same expression as that contained in the conveyance discussed in that case,-which was held not to impose a liability on the grantor; the property is conveyed subject to the payment of certain sums, and the covenants in the grant or lease assigned’by the instrument in question are expressly thereby assumed; while this payment, and all others mentioned therein, are not. What redress the partnership might be entitled to under such instrument, for the failure of the defendants to pay the plaintiff his claim, is immaterial; it is sufficient that it does not profess to give the plaintiff any rights, and that he cannot sue upon such instrument. The money due the plaintiff was not a lien upon any of the property transferred, but was entirely collateral; a transfer so made subject to such a payment, may thereby become conditional, or the sum may be part of the purchase-money, which the vendors may have a right to recover in case they have paid it, but it cannot create a contract directly between the vendees and the plaintiff, who was a stranger to, the assignment.

The complaint, it is true, alleges that by such assignment the defendants became possessed of the property mentioned therein, and agreed to pay to the plaintiff the amount agreed to be paid him by such partnership. That allegation, if not controverted in fact by the first paragraph of the answer, is a mere averment of the legal consequences of the agreement, and not of a separate and independent promise; it does not even contain any statement of any consideration for such separate promise.

There is, however, a statement in the complaint of a requisition by the defendants of the plaintiff to remove earth taken from the sewer to a great distance, and a promise thereupon by the former to pay the latter all sums expended by him in building such sewer, and keeping the track clear, as well as for his services above the amount paid by the city, both of which facts are denied in the answer. The Eeferee has not passed upon the issue so made, except as to request to cart away dirt, which he has found as a fact. The plaintiff testified that he was put to extra expense in carrying away such dirt, and it was admitted that this was done by direction of the defendants’ Superintendent, and that their President “then said to the plaintiff, it would make no difference to him ‘ as the defendants would have to pay for building the ‘ sewer.” The Eeferee does not find, from that evidence, any promise, and puts the liability of the defendants on a different ground, to wit, the assumption by the instrument of October, 1853; nor does he find whether the work so done by the plaintiff came within the terms of the agreement by him with the city officers"; particularly the clause “ requiring Mm to preserve from obstruction the rail tracks, “affected by the prosecution of the work therein described” If it did it would not form the foundation of a new promise, as the corporation and the partnership would be already liable for that. It must, therefore, be referred back, to enable the plaintiff, if he can, to prove the extra work and the separate promise, or if not the latter, to recover the value of such extra work. ' , .

I have not deemed it necessary to discuss the point of illegality in regard to the offers to the city officers to do the work; the only object of requiring such bids was to protect the city; any agreement, undoubtedly, between competitors, not to bid, or to withdraw their bids, so as to prevent competition, would be subject to the same objection as if it were a public auction. But there is nothing to prevent any separate or joint contractors from making several offers, and withdrawing any they pleased, which is the most contended for here, all the bids being put in by the agents of the partnership at different rates, they retained the most favorable one. But in fact the testimony does not establish any arrangement before putting in the bids, and the lowest one was allowed to expire by not giving security. Uo facts constituting such illegal arrangement, and no illegal arrangement, was found by the Referee.

But for the reasons before given, the judgment must be reversed and a new trial awarded, with costs to abide the event of the action.


author: By the Court—Moncrief, J.

text:
    Charles Pratt et al., Plaintiffs and Respondents, v. The Union Mutual Insurance Company, Defendants and Appellants.
    The defendants, an insurance company, issued to D. & Co., their agents, a marine policy, to cover only property, to be indorsed by D. & Co„ losses .payable to the parties named in certificates to be granted by D. & Co., and the aggregate amount to be thus insured was limited is §250,000. Subse■-quently the defendants, by a certificate, increased the amount which the •agents might certify, as insured, by the further sum of $250,000. At a ■later date they issued to the agents a second policy, similar to the former.

      Hdd, that a certificate -of insurance, issued to the plaintiffs, by the agents, under the second policy, and in terms referring to it, and entered upon it, was not invalidated by the fact that prior insurances, purporting to be made ■under the first policy and its renewal, exceeded in the aggregate the whole sum which the agents had been authorized by both policies tonnsure.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Submitted October 17th, 1861;
    decided December 28th, 1861.
    Appeal from a judgment in favor of the plaintiffs, ■.entered upon the decision of Chief Justice Bosworth, .after a trial before him, without a Jury, in October, 1859.
    This action was brought by Charles Pratt and William A. McKenzie, to recover $18,571, for a loss upon a contract of insurance, alleged to have been made by the ■defendants, through their agents, J. Day & Go., at Apalachicola, Florida.
    The nature of the agents’ authority, and the mode- of ■transacting the business, are fully stated in the report of the case of Hartshorne against the same defendants, 5 Bosw. 538.) *
    Among other facts, the Chief Justice found that the agents, J. Day & Co., shortly after receiving the second policy, (Eo. 993,) issued a certificate to the plaintiffs, which, ’by its terms, was stated to be “ entered this day on policy Eo. 993that the aggregate amount of risks entered upon Day & Co.’s register of risks, arising upon definite insur-ances effected prior to the date of the certificate to the plaintiffs, and of risks arising within the description of general certificates, which were prior in date to the certificate to the plaintiffs, was $760,093; one of which prior certificates was issued by Day & Co. to themselves, for over $49,000. And he held that there was no such oneness in the authority conferred by policy No. 784 on J. Day & Co., and in that conferred on them by policy No. 993, that J. Day & Co. could claim, by virtue of the certificate issued to themselves under policy No. 784, to be insured under policy No. 993 in preference to, or to the exclusion of these plaintiffs, to whom a certificate was issued under policy No. 993 on 31st of December, 1853. So that, even if it must be held that J. Day & Co. could not bind the defendants, so as to make them liable for an aggregate of risks exceeding $750,000 these plaintiffs were insured, as to the property in question, and were entitled to judgment.
    From the judgment entered accordingly, the defendants appealed to the Court at General Term.

      William M. Evarts for defendants, (appellants.)
    I. By the decision of this Court in Hartshorne’s case, holders of general certificates are protected in respect of risks within their description, as from the date of the certificate, and on this principal defendants are entitled to judgment in this case.
    II. The whole aggregrate of insurance possible, under the authority of the defendants, was $750,000. Prior to the risks on which plaintiffs’ loss accrued, there was an aggregate of insurance of $760,093. Under the principles, then, established in Hartshorne’s case, the aggregate of insurance was exceeded, before the plaintiffs’ risks, in question, had their inception.
    III. To overcome this result, the Court is required to establish certain additional principles which have received the assent of the learned Judge at Special Term.
    1. Certain risks taken and entered under a “ general certificate” to J. Day & Co., prior in date to the “ general certificate” to the plaintiffs, it is said, should be excluded from the computation.

      2. That the plaintiffs are entitled to apply their certificate to the last policy of $250,000, to the exclusion of all risks arising under certificates of an earlier date than such last policy, as well as of all definite risks arising subsequently to the date of the plaintiffs’ certificate.
    IV. As to the first claim; the whole ground is, that J. Day & Co., holders of these policies, for the purpose of' insuring risks in the cotton trade of Apalachicola, could not insure owners of cotton who made them their consignees. This proposition would not be listened to for a moment, in an action by one of these assured against the Company. If not maintainable in such an action, it is not in this action.
    V. As to the second claim; the whole course of the correspondence between the Insurance Company and J. Day & Co., as well as the whole dealing of the latter in their conduct of the business, requires the treatment of policy 993, and the insurance under it, as a continuance or enlargement of the previous faculty of insurance, granted in the- original policy 784, and its specific renewal.

      Charles O' Conor, for the plaintiffs, (respondents.)
    I. A general insurance certificate, issued by the agents of the insurers to themselves, and intended to cover the risks of their consignors and themselves as consignees, cannot stand as a valid insurance having priority to the plaintiffs. An agent cannot make a contract between two principals, he acting for both. (N. Y. Central Ins. Co. v. Nat. Protection Ins. Co., 4 Kern., 85.)
    II. Plaintiffs’’ certificate expressly relates to policy No. 993, and cannot be mixed up with insurances under policy No. 784-.
   By the Court—Moncrief, J.

This appeal was submitted without argument. The printed case being delivered to the Court, the counsel for the appellants suggested that it was possible no questions arose in the present action except such as were discussed and passed upon in the' case of Hartshorne v. The Union Mutual Insurance Company, (reported in 5 Bosw., 538,) and in that event neither argument or points would be presented, assuming that the present General Term would adopt or not dissent from the views there expressed.

The counsel for the respective parties subsequently (in December, 1861) submitted printed points.

Two policies were issued by the defendants and delivered to their agents, J.Day & Co.; one numbered 784, on or about the day of its date, the 27th October, 1852; the other numbered 993, on or about the day of its date, October 28th, 1853.

J. Day & Co., on the 15th Kovember, 1852, issued to themselves a certificate “ to cover all cottons shipped per good steamboats, * * * consigned to them by certain named consignors.”

The case of N. Y. Central Ins. Co. v. National Protection Ins. Co., (4 Kern., 85,) is decisive to the point that an agent cannot make a contract between his principal and himself. If the decision in the case be held to wholly invalidate the certificate issued to J. Day & Co. by themselves, so that subsequent certificate holders can avail themselves of its voidable character, then the amounts entered under that certificate must be excluded from the aggregate of insurances, and this, as conceded by the counsel for the appellants, will entitle the respondents to judgment. So if, for any reason, the acts of J. Day & Co. are held binding on the defendants, (irrespective of the amounts which had been placed at risk under either policy,) in favor of parties effecting insurance in good faith and without notice that such insurances and the amounts shipped under the same exceeded the nominal amount of the said policies, then the defendants are entitled to judgment.

We, however, concur with the view taken at Special Term, that the plaintiffs here have a right to treat their certificate of insurance as binding the defendants, irrespective of the amount of insurance effected with, or certificates issued by, J. Day & Co., prior to the issuing of the policy Ho. 993, dated October 28,1853, and which is found to have reached Apalachicola Hov. 20,1853. The certificate issued to the plaintiffs, was in very terms issued under and by virtue of policy Ho. 993, and was entered upon it and made binding Dec. 31, 1853. It neither accords with justice, nor, as we think, a sound construction of the contracts made by J. Day & Co., to permit certificates issued under and indorsed upon the prior policy, Ho. 784, to effect the rights of the plaintiffs.

Whether as between the defendants and any parties holding certificates indorsed upon policy Ho. 784, the recognition of which would make the insurance under that policy, and its renewal exceed the nominal amounts thereof, the defendants are bound by those certificates or not, the plaintiffs had a right to rely upon policy Ho. 993, as a valid policy from its date, and as one which would cover risks thereafter to be taken under it and indorsed upon it. To the plaintiffs, policy Ho. 993 spoke from its date, and according to its terms, and bound the defendants accordingly.

The judgment of the Special Term must, therefore, be affirmed.