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    A. EMILIUS OUTERBRIDGE and JOHN S. SCOTT, Plaintiffs, v. ROYAL PHELPS, Defendant.
    Easements.
    1. GENERAL PRINCIPLES. ■

      (a) Vendee, benefits taken by.
    Where the owner of two or more tenements sells one of them, or the owner of an entire estate sells a portion, the vendee takes the tenement or portion sold with all the benefits which appear at the time of its sale, to belong to it, as between it and the property which the vendor retains.
    But,
    (5) Vendor, imposing conditions by on property sold.

      No burden or servitude can be imposed by the vendor upon the tenements, or portion sold, in favor of the property retained by him in derogation of his grant, without a reservation expressed in the grant, unless both an apparent sign of servitude exists, on the parts of the tenements or portions sold in favor of the property retained and the easement claimed is strictly necessary to the enjoyment of the property retained.
    3. PARTICULAR EASEMENTS.

      Before Freedman, J., at Special Term.

      Decided December 23, 1879.
    (а) Right of-way of necessity.
    1. Arises only where there is no access to the dominant estate, except over the servient one. The fact that a way existing over the dominant land is too steep or too narrow, or less convenient, does not alter the case.
    2. Ceases, when the owner of the dominant estate acquires by the purchase of other lands, or otherwise, a way of access from a highway over his own land to the land to which the way belongs.
    (б) Signs, eight to affix. '
    1. If merely incidental as guides to an existing right of way, it would fall with the right of way.
    2. As it involves, in the case at bar, a periodical putting up and taking down of signs of various forms, sizes and appearances, it cannot be sustained, even in the case of a general reservation, without proof that the burden upon the servient estate is not increased thereby beyond the extent reserved; and in the absence of a reservation, it can be sustained only upon the additional proof of strict necessity and visibility.
    3. Advantage to business not sufficient. Although, in the city of New York, it might be advantageous or even necessary for the transaction of their business, by occupants of premises fronting on a side street, that their premises should appear to be Broadway property, yet such requirement, on the part of their business, does not, in any legal or proper sense, constitute a necessity for the proper enjoyment of the premises.
    Motion for the continuance of an injunction restraining the defendant from cutting off a right of way-claimed by the plaintiffs through the door and hallways of the building No. 29 Broadway, in the city of New York, and from tearing down, or removing from the front of said building the signs of the plaintiffs.

      Sutherland & Scott, attorneys, and Francis M. Scott, of counsel, for plaintiffs.
    Lord, Day & Lord, attorneys, and George De Forest Lord, of counsel, for defendants.
   Freedman, J.

The case, as made by the papers, submitted on both, sides, involves no controversy as to the material facts. They are as follows, viz.:

The building fronting on Broadway, known as No. 29 Broadway, and now owned by the defendant, was built first as a separate building. The next, immediately in the rear of the first, which in the motion papers is sometimes styled the “ rear building ’ ’ and sometimes the “extension building,” was erected after-wards fronting upon Morris street, and filling up the whole space in the rear of the original building, lying between the latter and the side walls of two dwellings, adjoining on the west, and fronting and opening upon Morris street as their only outlet. More than twenty-five years ago, all four of these buildings were used together as a boarding-house. While they were so used, the front building had staircases of its own, in the rear of the hallway, over and through which the plaintiffs claim a right of way. There was an opening in the west end of the hallway into the so-called rear or extension building ; and the main and customary entrance to all parts of the four buildings, while occupied and used together as stated, was through the door and hallway of the building fronting on Broadway. But there were also staircases in said rear or extension building, connecting the upper floors with the ground floor, from which, through doors still in existence, access could be, and I have no doubt, as occasion required, was had to Morris street; and there were other independent entrances from Morris street, which also still exist, and by which access could be, and was had into the two most westerly buildings, and through them to all parts of the four connected buildings. The staircases by which access was thus had to and from Morris street through the two most westerly buildings, are still standing, but are included in and covered by lettings to tenants of the present owner.

From, the intersection of Broadway and Morris street, the grade of Morris street t.owárds the west is descending, so that the first or ground floor of the building fronting on Broadway, was and is on a level ■with the second floors of the extension building, and the two most westerly buildings fronting on Morris street, and the ground or first floors of the buildings last referred to were and are on a level with the basement of the Broadway building. The premises, with these four buildings thereon, were next leased and occupied by the firm of Spofford & Tileston, who kept-open the communication which existed between the front and rear buildings, and used the rooms in the front building for their general office, and rooms in the rear parts for a record room, porters’ room, water-closets, coal bins, &c.

In 1868, while the premises were thus used and occupied by said firm, Paul 1ST. Spofford became the owner of them, subject to two mortgages upon the whole, amounting in the aggregate to the sum of $50,000. These mortgages have been assigned to and are now held by the Mutual Life Insurance Company. From the time Spofford became the owner, he rented out offices in the building to tenants for business purposes.

A short time before May, 1865, Spofford made extensive alterations in the premises, for the purpose of rendering the whole of the premises suitable and available for business purposes, and put them in the condition in which they still are. Among other things not necessary to be specially mentioned, he widened the front hall on the first floor of the front building and continued the passage-way thus widened straight to the extreme westerly end of the four buildings, and he also removed the staircase in the front building, and constructed one in the east end of the so-called rear or extension building, by which access was provided to each floor of the four buildings. From that time forward the entrances on and from Morris street ceased to be used, and the tenants of the offices in the so-called rear building were obliged and of necessity permitted to pass in and through the door and hallway of the building fronting and facing upon Broadway, and the tenants of the upper parts of the Broadway building were obliged and of necessity permitted to pass up and down the staircases erected in the rear or extension building; and all tenants, no matter in what part of the connected buildings their offices were situated, were permitted to display and keep upon the front of the Broadway building signs indicating their names and the character of their business. O n the ground floor of th e rear or extension building, situate between the building fronting on Broadway and the two most westerly buildings, there are four small shops, which face and open on Morris street, and they were deprived of the communication that formerly existed between the ground floor and the upper part of said building. ■

In January, 1873, the Mutual Life Insurance Company, in consideration of $25,000 paid on its mortgages, released the entire front or Broadway building to Spofford, by an instrument containing no reservations, and about the same time Spofford mortgaged the premises so released to William Albert and Charles Hickman, as executors of the estate of Bichard Adams, deceased, to secure a loan of $50,000. This mortgage contained no reservations, and was recorded February 6,1873.

After the mortgage last referred to had been made and recorded, the plaintiffs hired from Spofford, and went into the occupation of, two rooms on the second floor of the so-called rear or extension building, and since 1874 their said occupation has been continued under successive annual leases. Their present holding is' under a verbal letting for one year, from May 1, 1879, upon the terms expressed in a previous written lease, which, however, as is admitted, contained no allusion to either a right of way through the hallway in question or to a right to affix signs upon the Broadway front.

Spoiford remained in possession of the four buildings connected as aforesaid, until December, 1878, when the premises fronting on Broadway were sold under a judgment for the foreclosure of the Albert and Hickman mortgage, and purchased by the defendant in good faith, and without knowledge of plaintiffs’ claims, for the sum of $58,000. The remaining three buildings, lying and fronting upon Morris street, west of the defenddant’s building, Spoiford retained, and they are still owned by him.

Upon ascertaining, after his bid had been accepted, the condition and use of the premises, and fearing that some right of way might be claimed by Spoiford or his tenants, the defendant applied to the supreme court, which had given the judgment of foreclosure, to be relieved from his purchase. At the same time the plaintiff in the action applied to the same court for an order directing the defendant to complete his purchase. The plaintiff gave notice of his application to all the parties who had appeared in the suit, but did not serve the papers on Spoiford, who had not appeared. Spoiford, however, seems to have had actual notice of both applications. They were heard together, and both decided against the defendant, and the latter thereupon completed his purchase, as he was directed to do, and paid the price bid, and received his deed.

It was not untiHhe defendant had thus completed his purchase, that Spoiford first claimed that a right of way through the Broadway building existed; and when, after due notice to Spoiford and his tenants, including these plaintiffs, the defendant, having erected new staircases inside of his building, and desiring to utilize part of the hallway to increase the size of the main offices in his building, proceeded to close up the opening in his rear wall, he was stopped by the temporary injunction in this case.

The present action is not brought by Spofford, but by the plaintiffs as tenants of Spofford. They show that they are shipping and commission merchants, transacting business at the offices occupied by them as agents of a steamship company known as the Quebec and Gulf Ports Steamship Company,” and running numerous steamers from this port to ports in the West Indies and other places ; that frequently more than one hundred persons call at their said offices in the course of a single day to transact business with them, and that free and convenient access to bheir place of business is a matter of the greatest importance to them. They also allege that Broadway is the principal business street and thoroughfare in the city of New York ; that all the important steamship companies transacting business in this city have their offices either on Broadway or the Bowling Green, and that the offices occupied by them are valuable to them only because of the entrance thereto from Broadway. They therefore claim that by vi rtue of their hiring they are entitled to a right of way through the ball of the Broadway building, and to the right to affix and maintain their signs upon the Broadway front, and that the defendant cannot deprive them thereof, and they show by the affidavit of Spofford that the latter intended to and did give them these rights as far as he could do so.

If these rights exist in favor of the plaintiffs, whose lease is subsequent to the mortgage through which defendant’s title comes, and subsequent also to the tiling of the lis pendens in the foreclosure suit, they must exist to the same extent in favor of every tenant occupying a room, no matter how small, in any one of the three buildings which Spofford retains, and not only in favor of every such tenant now in possession, but also in favor of every one who may come in under future leases ; and thus the Broadway building must remain forever subject to the burden which thus rests upon it and materially affects its rental and salable value. For if the rights claimed exist at all, they must exist as easements which are attached to and follow the land, not the person of Spofford, and as such follow parts of the estate into the hands of the respective tenants.

The general rule undoubtedly is, that where an easement is secured to a dominant estate and is designed to benefit the same, in whosesoever hands it may be, it will inure to the benefit of the owners of the several parts into which it may be divided, provided the burden upon the servient estate is not thereby enhanced.

At the- outset it is important to observe, however, that th„ere being, as was conceded, no right by prescription, the rights claimed must rest in a reservation in some form or way to Spofford at the time of his mortgage to Albert and Hickman in 1873. For since the execution of that morgage as a conveyance "to secure the payment- of the sum named therein, Spofford could convey no rights to the plaintiffs but what were subject to the estate created by that instrument.

It is conceded that the mortgage in question conveyed the premises fronting on Broadway, by metes and bounds, in fee, subject only to the conditions of the mortgage, and that it contained no reservation either of a right or way, or of any other right in favor of any of the other premises retained by Spofford ; and as, as a general principle, no reservation is implied in a grant, it would seem to follow, that the rights now claimed are not well founded.

Thus in Burr v. Mills (21 Wend. 290), where a man had conveyed without reservation part of a tract of land, which was at the time flowed by a mill-dam, belonging to him, and had retained the other part on the stream below, it was held that his right to continue to flow the land conveyed was gone. Cower", J., states the principle as follows: “ After having sold the land absolutely, Nathaniel Burr, the testator, had no right of flowing left, which he could devise to his four grandchildren. It can make no difference that there was then a dam built which flowed this land. If a man convey land which is covered by his mill pond, without any reservation, he loses his right to flow it. There is no room for implied reservation. A man makes a lane across one farm to another, which he is accustomed to use as a way; he then conveys the former, without reserving a right of way ; it is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose, without an express reservation. The flowing or the way are but modes of use, and a grantor might as well claim to plow and crop his land. If the mill had been first sold by Nathaniel Burr, to another, it would have been different; for the right of flow would have passed to that other as an incident, and could not then be cut off by the grantor.”

The plaintiffs rely, however, upon the principle enunciated by Selden, J., in delivering the opinion of the court of appeals in Lampman v. Milks, 21 N. Y. 505, and upon the reported cases, which, it is claimed, establish a rule similar to that stated in the case first mentioned. Judge Selden says : “The owner of real estate has, during his ownership, entire dominion and control over its various natural qualities, and may dispose of and arrange them at will. He may alter the natural distribution of those qualities, so as essentially to change the relative value of the different parts ; and may, in a great variety of ways, make one portion of the premises subservient to another.....

“ The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the. tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, atany time, re-arrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases ; and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it. The-parties are presumed to contract in reference to the condition of the property at the time of the .sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”

In that case a certain watercourse had been diverted into an artificial channel, thereby freeing from wafer-land, which in that condition was sold to the plaintiff, and upon which he had built a barn, and it was held that neither the vendor, nor his subsequent grantee of the remaining portion, could close the artificial channel and thereby again flood plaintiff’s land. It was a case, therefore, where tins implication of the imposition of a . servitude was sustained, not in favor of the grantor, bu t of the grantee, and hence it is evident that the proposition that a similar implication arises in favor of a : grantor and against a grantee, was not involved in the decision of the case so as to become conclusive authority, and that Judge Selden did not intend thereby that it should be applied to all cases which by possibility mightbe brought within its broad language. Inanother part of the opinion he had himself stated the question before him to be as follows : “The precise question in this case is, whether an owner, who, by such an artificial arrangement of the material properties of his estate, has added to the advantages and enhanced the value of one portion, can, after selling that portion with these advantages openly and visibly attached, voluntarily break up the arrangement, and thus destroy or materially diminish the value of the portion sold.”

But I am not left to mere inference as to whether the proposition so broadly stated in favor of general reciprocity, was obiter or not, for in the later case of Butterworth v. Crawford (46 N. Y. 349), in which it was sought to enforce that very doctrine under circumstances which brought it directly before the court, the decision of the case was carefully placed upon a dift'erent^point and the court expressly announced that it did not propose to decide the question.

I am therefore at liberty to consider the question now before me as one which is open in this State, and which must be dealt with upon principle, rather than upon authority.

In the examination of the doctrine as stated—in both its aspects—by Judge Selden, in Lampman v Milks, with a view of supporting it upon principle, the first point which challenges attention is, that the two converse propositions are very unequally supported. So far as it implies an easement in favor of the grantee, it stands upon solid ground, viz.: That no man can derograte from his oxvn grant, and that justice requires that the grant should be construed against the grantor so far as to" pass the privileges affixed by himself to the property conveyed. So far as it implies an easement in favor of the grantor, these reasons fail, and others must be resorted to. But I cannot see what others there can be, except strict necessity.

True, Gale and Whately on Eastments claim that the maxim that no man can derogate from his own grant, though insufficient to account for, is nevertheless consistent with the principle, that the obligation is imposed equally on the grantee and grantor. But the value of their statement as an authority must, of course, depend upon, and be measured by the number and weight of the cases which support it.

The numerous cases cited in which the dominant ■tenement was first conveyed, and the implication enforced in favor of the grantee, and all cases in which the conveyance of both dominant and servient tenements was simultaneous, or the title to both vested simultaneously by operation of law, as, for instance, by descent cast, may, therefore, be at once dismissed.

This leaves for special consideration: Nicholas v. Chamberlain, Cro. Jac. 121; Pyer v. Carter, 1 Hurls. & N. 916; Davies v. Sear, 7 L. R. Eq. 427; Suffield v. Brown, 9 Jur. N. S. 999; and Hazard v. Robinson, 3 Mas. 272.

In Nicholas v. Chamberlain it was held, upon demurrer, “that, if one erect a house, and build a conduit thereto, in another part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, excepting the land, or sell the land to another, reserving to himself the house, the conduits and pipes pass with the house, because it is necessary and quasi appendant thereto ; and he 'have shall liberty by law to dig in the land, for amending the pipes, or making them new, as the case m ay require. ’ ’

Davis v. Sear was a case of way by necessity. The house conveyed contained an arch through which a, paved passage-way ran to land and a stable in the rear. The case turned not only on the state and condition of the property, but also the notice which the defendant had, at the time of the purchase, and it was held that though the archway, to which he took subject, may not then have been a way of necessity, yet being obviously designed to be one, and bound to become one, and actually becoming one on the completion of apian for the erection” of other buildings in the immediate vicinity, and then in process of erection, a right of way was reserved by implication.

Hazard v. Robinson Avas a case of watercourses where a right had also survived from a prior user.

In Pyer v. Carter the defendant’s house adjoined that of the plaintiff, and the action Avas for stopping a drain running under both houses. The two houses had formerly been one, and were converted into two by a former owner, xvho conveyed one to the defendant and afterwards the other to the plaintiff. At the time of the conveyances, the drain existed and Avas in use for both houses ; running first under that of the plaintiff, next under that of the defendant, and then discharging itself into the common sewer. It was proved that the plaintiff might have a drain direct from his house into the common sewer, and it was not proved that the defendant at the time of his purchase kne>v of the position of the drain. It Avas laid down by the court that Avhere the owner of two or more adjoining houses conveys one to a purchaser, such purchaser will be entitled to all the benefit of all the drains from the house, and subject to all the drains “ necessarily used” for the enjoyment of the adjoining house, and that too without any express reservation or grant, inasmuch as the purchaser takes the house “as it is,” and that the question as to what is necessarily used, depends upon the state of things at the time of the conveyance, and as matters then stood without alteration. Watsow, B., said: “We think that the amount to be expended in the alteration of the drainage, or in the constructing of a new system of drainage, is not to be taken into consideration, for the meaning of the word 1 necessity ’ in the cases above cited and in Pinnington v. Galland (9 Exch. 1), is to be understood the necessity at the time of the conveyance, and as matters then stood, without alteration, &c., &c.”

This case has been much discussed and criticised, and in Washburn on Easements (2 ed. p. 68) the learned author, after reviewing the cases on this subject, states that he considers the doctrine of Pyer v. Carter confined to cases where a drain is necessary to both houses, and the owner makes a common drain for both, and this arrangement is apparent and obvious to an observer. In Butterworth v. Crawford (46 N. Y. 349), Rapallo, J., in delivering the unanimous opinion of the court of appeals, approves of the conclusion reached by Prof. Washburn, and adds: “If Pyer v. Carter goes further than that, or, at all events, if it applies to cases where there is no apparent mark or sign of the drain, it is not in accordance with the current of the authorities.”

In Suffield v. Brown (9 Jur. N. S. 999), the owner of a dock adjoining a wharf, claimed as an easement that the bowsprits of vessels in .the dock might project over the wharf. The master of the rolls had granted an injunction on the ground that the wharf and the dock had been once owned, and so used, together, by the common grantor of both parties.

But Lord Chancellor Westerburt, in 1864 (10 Jur. N. S. 111) reversed the decree, declaring the law on this branch of the case in the following language : “Assuming that the vendor had been in the habit, during his joint occupation of both properties, of making the coal wharf subservient in any way to the purposes of the dock, one would suppose that the right to do so was cut oil and released by the necessary operation of an unqualified sale and conveyance of the subservient property. It seems to be more reasonable and just to hold that, if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain gragt (which is not pretended to be otherwise than in conformity with the contract between the parties) by the fiction of an implied reservation.”

In the course of his opinion the learned lord chancellor declares that Pyer v. Carter is not good law, so far as it seems to establish an implied reservation against a man’s own grant, and he also repudiates the doctrine asserted by Gale & Whately, viz. : that the obligation is imposed equally on the grantee and the grantor, and that it is immaterial which of the two tenements is first granted, whether it be the quasi-dominant or quasi-servient tenement, in the following language : “But I cannot agree that the grantor can derogate from his own absolute grant, so as to claim rights over the thing granted, "even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of the grantor.”

Thus Suffield v. Brown, as finally decided by the lord chancellor, is in perfect harmony with Burr v. Mills (21 Wend. 292), already referred to, and consistent with the point actually decided in Lampman v. Milks (21 N. Y. 505), and although subsequently, in Davies v. Sear (7 L. R. Eq. C. 427,) the same master of the rolls (Lord Bouilly) who had originally granted the injunction in Suffield v. Brown, repeated the assertion that it is immaterial whether the dominant or the servient tenement is conveyed first, it is evident that his assertion cannot override the direct decision of the lord chancellor, his superior, which remains unreversed. Besides, as already shown, Davies v. Sear went upon the question of the way being a way of necessity.

The next point to be considered is, that all ease- ' ments and servitudes do not stand upon the same footing.

In Lampman v. Milks (supra) Selden, J., says : “It is not every species of easement which passes as a matter of course by the conveyance of one of two tenements, or part of a single tenement, by the owner of both or the Whole. Easements, or servitudes, are divided by the civil code of France into continuous and discontinuous. Continuous are defined to be those, of which the enjoyment is, or may be, continual, without the necessity of any actual interference by man ; as a water-spout, or right to light or air. Discontinuous are those, the enjoyment of which can be had only by the interference of man; as rights of way, or a right to draw water.

“ Servitudes are also divided, by the same code, into ‘apparent’ and ‘ non-apparent.’ ' The analogy between the common law and the French code, in this respect, would seem to indicate, as suggested by Messrs. Cale & Whately, a common origin. The substance of those divisions may be distinctly traced in the common law cases; and it will be found that those easements which, according to this classification, are termed discontinuous, pass upon a severance of tenements by the owner only when they are absolutely necessary to the enjoyment of the property conveyed. Cale & Whately, after stating the grounds upon which easements are held to pass in such cases, says : ‘ This reasoning applies to those easements only which are attended by some alteration which is, in its nature, obvious and permanent / or, in technical language, to those easements only which are apparent and continuous ; understanding, .by apparent signs, not those which must necessarily be seen, by those which may be seen or known, on a careful inspection by a person ordinarily conversant with the subject ’ (Gale & Whately on Easements, 40).”

Of course, a right of way may, in an exceptional case, especially if indicated by an artificial structure of a permanent character, constitute an apparent and continuous easement. But as a general rale, rights of way are in their nature discontinuous and non-apparent, unless strictly and obviously necessary, and the distinction between,rights of way and other easements which from their nature may be deemed necessary, is therefore recognized by many cases, including Lampman v. Milks.

For these reasons, and the further one that a right of way arises only from the effect of the grant or reservation of the land itself, provided there is no other way of access to the same, it has always been held, and the law seems to be now settled beyond controversy, that, in the language of the court in McDonald v. Lindall: “The right of way from necessity over the land of another is always of strict necessity, and this necessity must not be created by the party claiming the right of way. It never exists where a man can get to his property through his own land. That the way through his own land is too steep or too narrow, does not alter the case. It is only where there is no way through his own land that the right of way over another can exist. That a person claiming a way of necessity has already one way, is a good plea, and bars the plaintiff” (McDonald v. Lindall, 3 Rawle, 492; Stuyvesant v. Woodruff, 1 Zab. 113; Felters v. Humphreys, 3 C. E. Green, 260). Or, as stated by another class of cases, a right of way exists only where the person claiming it has no other means of passing from his estate into the public street or road (Gayetty v. Bethune, 14 Mass. 49; Grant v. Chase, 17 Id. 443; Smyles v. Hastings, 22 N. Y. 217; Collins v. Prentice, 15 Conn. 39; Hyde v. Jamaica, 27 Vt. 443).

Nor would the rights of a grantor be any more extensive or different, though by the terms of his deed he reserved to himself “a way of necessity” (Viall v. Carpenter, 14 Gray, 126); and Washburn on Easements shows by quite an array of authorities that the right of way of necessity is so limited in respect to its duration, that, though it remains appurtenant to the land in favor of which it is raised, so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires, by purchase of other land or otherwise, a way of access from a highway over liis own land to the land to which the way belongs, the way of necessity is at an end; or, in other words, a way of necessity ceases as soon as the necessity ceases.

From the examination so far made, which included many cases which I do not deem it necessary to mention specifically, I am satisfied that the true rule of law is as follows : Where the owner of two or more tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold, with all the benefits which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. But no burden or servitude can be imposed by the vendor upon the tenement, or portion sold, in favor of the property retained by him in derog ition of his grant, without a reservation expressed in the grant, unless an apparent sign of servitude exists on the part of the tenement, or portion, sold, in favor of the property retained, and the easement claimed is strictly necessary to the enjoyment of the property retained. In the latter case visibility and strict necessity must both concur, as in the case of a party wall, and especially in the case of a claim of right of way.

The rule being as stated, the plaintiffs cannot succeed upon this motion. Not only was there no reservation, but it also clearly appears, and on their own showing, that access can be had to the buildings retained by Spofford, and through them to their offices, from Morris street; and also that, at a comparatively small expense, additional, direct and perfectly abundant communication between said street and their offices can be established by the construction of an interior staircase from the ground floor to the second floor of the building in which the said offices are situated. In view of these facts the right of way claimed did not spring into life upon the severance of Spofford’s property in favor of the property retained by him, and the plaintiffs can claim no such right.

The element of necessity being wanting, it is not enough that, as claimed by the plaintiffs, apparent signs of servitude existed at the time of the execution of the Albert and Hickman mortgage. Nor is it necessary to determine whether such signs as did exist, really constituted apparent signs of servitude, within the rule laid down by the authorities, or were just as insufficient to create an apparent easement, as the gate was held to be in Stuyvesant v. Woodruff (1 Zab. 133), or the carriage way in Pheysey v. Vicary (16 M. & W. 484), or the alley-way in Felters v. Humpheys (3 C. E. Green [N. J.] 260).

The right claimed to affix and maintain signs upon the Broadway front of defendant’s building, if not still more indefensible, stands upon the same footing as the right of way claimed, even when considered as an independent right, and not merely as one which is incidental as a guide to an existing right of way. If it survived a severance, it would, as tenants would move into or out of the buildings retained by Spofford, necessitate a periodical putting up and taking down of signs of various forms, sizes and appearances, and consequently involve often recurring changes in the appearance of the front itself. This the law would permit, even in case of a general reservation, only upon proof that the burden upon the servient estate was not increased thereby beyond the extent reserved. And in the absence of a reservation it can be sustained only upon proof of strict necessity as well as visibility.

But I cannot see how, in a case like the present, it can be said that the existence of the right claimed is necessary to the enjoyment of the demised premises. The plaintiff’s tenement is bounded by its four walls, and though for the transaction of their business therein it may be more advantageous, or even necessary, that the premises occupied by them should appear to be Broadway property, yet such a requirement on the part of their business does not in any legal or proper sense constitute a necessity for the proper enjoyment of the premises. Matters necessary for the proper enjoyment of demised premises, and matters necessary for the profitable transaction of a certain business therein, are altogether different things. Between landlord and tenant no contract or warranty on the part of the landlord, that the premises demised shall be or continue fit for the tenant’s business, is ever implied from the mere fact of letting. None can therefore be implied against Spofford, from the mere fact that he rented to the plaintiffs the offices occupied by the them. How then can such an implication arise against the defendant, whose position is still stronger % If the plaintiffs stand so much in need of premises fit for the purposes of business usually transacted on Broadway, they should be left to secure them directly.

Upon the whole case, therefore, it clearly appears that the plaintiffs, as tenants whose rights are in all respects subsequent and subject to those acquired by the defendant under the sale of foreclosure, possess no right of easement, or any other right sufficient to maintain the action against the defendant, and that, if Spofford expressly contracted, but failed, to give them any such right, their remedy is against Spofford personally. Having reached that conclusion in the course of the examination already made, it is unnecessary to consider the further point pressed, and argued with great ability on the part of the defendant, that the question involved in this motion is res adjudicata between the parties by reason of the decision of the supreme court by which the defendant was compelled to complete his purchase.

The motion of the plaintiffs for the continuance of the injunction should be denied, and the preliminary injunction dissolved, with $10 costs.


source: Caselaw Access Project

author: Van Vorst, J.,

license: Public Domain

text:
    THE FARMER’S AND MECHANIC’S NATIONAL BANK OF BUFFALO, Plaintiff and Respondent, v. JOSEPH M. HAZELTINE, et al., Defendants and Appellants.

    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Appeal by defendants from judgment and order denying motion for new trial on the minutes.

      C. Van Santvoord, attorney, and of counsel, for appellants.

      Fithian & Clark, attorneys, and Freeman J. Fithian, of counsel, for respondent.

       Decision in this case affirmed by the court of appeals, September 16, 1879; see 9 N. Y. Weekly Dig. 8; also see 43 Super. Ct. 546.

   Van Vorst, J.,

wrote for affirmance with costs, holding in substance:—This case involves the same principles as are presented in Farmer’s & Mechanic’s National Bank of Buffalo v. Logan, 74 N. Y. 568, and in Farmer’s & Mechanic’s National Bank of Buffalo v. Atkinson, Id. 587. The points urged by counsel for appellants are fully answered by the opinions in those cases. The maxim, nemo dab quod non habeb, applies.

Speir, J., concurred.


text:
    ELIAS PONVERT, Plaintiff and Respondent, v. AUGUST BELMONT, Defendant and Appellant.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    Appeal by defendant from judgment entered on report of referee.

      Joseph Larocque, for appellant.

      J. S Lawrence, for respondent.
   Van Vorst, J.,

wrote for affirmance with costs, liokii;ig substantially, as follows:—The justice of the plaintiff’s claim has been established by the general tcnu of this court in Ponvert v. Belmont (42 Super. Ct. 531). The error of the referee on the former trial has been corrected on the new trial; in other respects, the judgment is as it was before. Appellant’s exceptions to rulings of referee-do not call for interference with judgment.

Speir, J., concurred.


author: Per Curiam.

text:
    WILLIAM J. BURNETT, Plaintiff and Respondent, v. C. BROWN SNYDER, Impleaded, &c., Defendant and Appellant. (Action No 1.)
    I. PARTNERSHIP.
    1. Vt'llA i' WIl.I. CONSTITUTE.
    pz) An a/wement was made between several, that certain of their number should be named as copartners in partnership artii 1<»:. and that the others should have a certain proportion of the interest of certain of those so named, which agreement was carried into effect.
    . Held,

    it appearing that it was the mutual desire of all that those not named in the articles should be interested as partners, and that it was their common opinion that the interest of the firm' would be best subserved by those, not to be named in the articles, not appearing to the world to be partners; and it also appearing that the above mode was adopted to accomplish the desired result:
    THAT
    it was the intent of all the parties, including Snyder, that he should, as between themselves, have the interest of a partner; and that the form of the written contracts drawn and executed could not prevent the liability of a partner attaching to Snyder, as between him and third persons dealing with the firm, while this relation existed.
    1. Sub-pabtnebship. Such an arrangement does net present a case where, after the firm is formed, one partner forms a sub-partnership, which, when it becomes known to the others, is neither approved nor disapproved of by them, as was the case in Burnett v. Snyder, 43 N. Y. Super. Ct. 238.
    II. LIMITATION, STATUTE OF.
    1, Payment on account by one partner after firm has gone into liquidation.
    (a) Effect on another partner.

    1. S., being liable for the debts of a firm, whether as a partner intei• sese or quoad third persons, after the firm went into liquidation, gave to a partner of the firm an amount of money, to be applied by him towards the payment of the debts of the firm, such partner agreeing to.pay the debts in full; such partner made a part payment on a claim against the firm.
    Held,
    sufficient to take the case out of the statute of limitations as to S.
    1. This, though the claimant may have received no part of the identical money furnished by S.; and though the whole of the money so furnished may have been applied to the payment of other firm liabilities before any payment on the claims in suit.
    2. Residence.

      (a) Remarks of referee on.

      Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    This action was brought against C. Brown Snyder, as partner in the firm of Strang, Platt & Co., to recover an indebtedness due plaintiff from that firm. The principal questions involved were whether he was liable as a partner, and whether the claim was not barred by the statute of limitations.
    Strang, Platt, Byley, Sexton and Snyder being mutually desirous that Sexton and Snyder should be interested as partners in two firms to be formed, one to do business at New York under the name of Strang, Platt & Co., and the other to do business at Boston, under the name of George W. Byley & Co., and being of the common opinion that the interest- of the firms would be best subserved by Sexton and Snyder not appearing to the world to be partners, adopted a mode to accomplish the desired result, which mode was the preparation and execution of articles of copartnership to be signed by Strang, Platt, and Byley, in which they alone were named as partners, and that Sexton should have half of the interest of Platt, and Snyder have half of Byley’s interest; separate agreements to be entered into between Sexton and Platt and between Byley and Snyder. Under the terms of the formal partnership, Strang had one-fifth, Platt two-fifths, and Byley two-fifths. Sexton had one of Platt’s two-fifths, Snyder had one of Byley’s two-fifths. They each had a fifth interest.
    In 1864, Sexton’s interest ceased, his part of the accrued profits were transferred by him to Snyder, to pay some indebtedness of his to Snyder, and then a new agreement by parol was made between Strang, Platt, Byley and Snyder, by which the business was to be continued as previously, and that Platt should have one-fourth, Strang one-fourth, and Ryley one-half of the profits, and that Snyder should have one of Ryley’s quarters, thus giving each of the four a quarter of the profits.
    Ryley died in June, 1867. Pursuant to agreement between Mr. Platt, Mr. Strang, Mr. Snyder, and the administratrix and administrator of Ryley, the business was continued until December 31, 1869, or January 1,1870.
    A new firm was then formed, under the same firm name, to continue and transact the same business. In that firm Snyder’s interest was continued, he having a share of the interest of Ammon Platt and of Strang therein. That was dissolved in or about the following April by the death of Ammon Platt. A new firm was then formed, commencing about May 1,1870, under the same firm name, to continue and transact the same business, and Snyder was also interested in the business and profits of that firm. «That continued until it went into liquidation.
    In 1874, it became necessary to provide means to pay the debts of the three firms, and more especially of firms No. 1 and No. 2.

    A summary statement of the aggregate amount" of the liabilities of the three firms was furnished by Strang to Snyder, being, as then stated, about $104,000. The liabilities proved to be somewhat larger, by reason of losses accruing on leases taken in Boston. After discussion and consideration, Snyder furnished to Strang $50,000 in funds and credits, to be applied by him in paying the liabilities of these three firms, and Strang agreed with Snyder to pay them in full. Under tins arrangement Strang paid to the plaintiff, October 10, 1874, on account of what Strang, Platt & Co. owed tie plaintiff, the sum of $5,141.31.
    Upon the question of the statute of limitations the ! referee held:
    ] “This payment of $5,141.31, on account of the debt owing to the plaintiff, operates to prevent the debt being barred by the statute of limitations. It was not only made by the consent and authority of Snyder, but it would have been a breach of faith on the part of Strang if he had not applied the $50,000 in payment of debts owing by the firm, or had not paid that amount by reason of having received that sum. I do not think the fact that the plaintiff may have received no part of the identical $50,000, furnished by Snyder, or that Strang may have, actually paid $50,000 of the firm’s liabilities before he paid to the plaintiff the $5,141.81, affects the question of the force and effect of this payment, as a part payment on account. It was a part of the agreement between Strang and Snyder that Strang should pay not only a part, but the whole of each debt. And in making such payments, Strang did what Snyder not only required he should do, but required him to contract that he would do.”
    The referee reported in favor of plaintiffs. Upon his report judgment was entered; and defendant, Snyder, appealed.

      Wilson & Wallis, attorneys, and of counsel, for appellant.

      Martin & Smith, attorneys, and A. P. Whitehead, of counsel, for respondent.
   Per Curiam.

The judgment should be affirmed, on the opinion of the referee.


author: Freedman, J.,

text:
    WILLIAM J. BURNETT, Plaintiff and Respondent, v. C. BROWN SNYDER, Defendant and Appellant. (Action No. 3.)
    Before Curtis, Ch. J., and Sedgwick and Freedman, JJ.

      Decided March 3, 1879.
    Tbial.—Objections, when to be taken.
    In this case the objection that no demand had been proved, was not raised at the trial, but the existence of the fact, if material, seems to have been assumed by all parties, and by the referee.
    The defendant, on filing exceptions to the report, sought to raise the point after'the final disposition of the issues. Held, that, as the objection was capable of being obviated by proof, if it had been taken at the proper time, it should have been distinctly taken at the trial. Not having been taken then and there, it is not available on appeal.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.

      Wilson & Wallis, attorneys, and William G. Wilson, of counsel, for appellants.

      Martin & Smith, attorneys, and Aaron P. Whitehead, of counsel, for respondent.
   Freedman, J.,

wrote for affirmance, with costs, holding as above ; and as to all other questions concurring with the views of the referee.

Sedgwick, J., concurred.


text:
    DAVID WOOLF, Plaintiff and Respondent, v. AARON JACOBS, Impleaded with another, Defendant and Appellant.
    Before Van Vorst and Speir, JJ.

      Decided March 3, 1879.
    II. Attorney’s lien.
    ,1. Attachment for contempt.
    ' (a) Lien op attorney upon pine imposed by warrant op attachment PROTECTED.
    This was a motion to vacate a warrant of attachment issued against defendant, Jacobs, committing him to jail for thirty days, for a contempt of court in violating an injunction contained in an order for his examination as a judgment debtor, issued after execution returned, by transferring certain of his property, and fining him $2,740.54, and ordering him to stand committed until said fine should be paid.
    From the face of the warrant it appeared that this sum of $2,470.54 was composed as follows : $2,068.69, part of the amount remaining due on the judgment; $252.25, costs of expenses of the .proceedings to punish for contempt; $250, counsel,fees in such proceedings ; it also appeared that the property transferred was of •the value of $2,068,29.
    The warrant was issued December 17, 1874. Upon the motion it appeared that plaintiff, after the issuing of the warrant, assigned the judgment, and that the assignee had satisfied it of record, and that, at the time of the assignment, plaintiff, for the consideration of $1, released the defendant, Jacobs, from the fine and all liability by virtue thereof; it also appeared that the defendant had been actually imprisoned under the warrant for over thirty days.

      It also appeared that the costs and allowance -Xo-. 1 in the judgment amounted to $2,779.49 ; that plaintiffs attorney had expended large sums of motley for disbursements, and had been paid nothing, either on account of his disbursements or of his services ; and that plaintiff’s attorney served a notice,of Hen on the judgment and attachment proceedings upon the defend ant’s attorney, prior to the aforesaid assignment and release.
    The motion was denied at special term. From the order entered on said denial defendant appealed. The real respondent was plaintiff’s attorney.

      Samuel J. Crooks, counsel, for appellant.

      C. Bainbridge Smith, counsel, for respondent.
   Per Curiam.

The order must be affirmed with costs.


text:
    ADOLPH E. FLAMANT, Plaintiff and Appellant, v. S. W. WOOD, Defendant and Respondent.
    Before Curtis, Ch. J., and Freedman, J.

      Decided March 3, 1879.
    Appeal from order denying plaintiff’s motion for leave to amend the complaint.

      W. D. Hennen, for appellants.

      E. J. Pattison, for respondents.
   Per Curiam.

The order should be affirmed,, with costs.'


text:
    BENEDICT ESS, Plaintiff and Respondent, v. CLARA ESS, Defendant and Appellant.
    Before Curtis, Ch. J., and Freedman, J.

      Decided March 3, 1879.
    This was an action for a limited divorce on the ground of cruel treatment. The answer denied the allegations of the complaint, set up cruel treatment by plaintiff, and asked for a limited divorce in defendant’s favor.
    The cause was tried before a referee, who found in plaintiff’s favor. Judgment of divorce a mensa et thoro in favor of plaintiff, and awarding him the custody of the children, was entered on the report.
   Per Curiam.

The order and judgment should be affirmed.


text:
    CHAUNCEY KILMER, Plaintiff and Appellant, v. SAULSBURY L. BRADLEY and - SMITH, et al., Defendants and Appellants.
    I. Injunction.

    1. Prosecuting an appeal, injunction against denied.
    1. A plaintiff has no right to prevent ail appeal, unless the appellant party, in a formal and effective way, surrenders to the plaintiff his right to appeal.
    2. If there is any good reason to question the validity of an appeal, it should be done by motion in the action in which the appeal is taken.
    3. The facts, that the interests of another defendant will be promoted by the appeal, and that such other defendant is aiding in its prosecution, will not justify an injunction, whatever may be the status of such other defendant, as to an appeal in his . own behalf.

      Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    This, was an action for an injunction to restrain defendant Smith and his attorney from prosecuting'an appeal taken in an action between the plaintiff and defendants Bradley and Smith. This plaintiff claimed that Smith had expressed a determination not to appeal, and that he was afterwards induced to do so by his co-defendant, Bradley, who desired an appeal to be taken to promote his own interest, and who was aiding in the prosecution of Smith’s appeal.
    Judgment passed against the plaintiff, and he appealed.
   Per Curiam.

We fail to discover, in the facts alleged in the complaint, any sufficient ground for this action. If there was any good reason to question the validity of che appeal of Smith, it could have been well a,nd sufficiently done by motion in the original action. But aside from that, the defendant Smith had a legal right to appeal from the judgment, and take measures to reverse it if he could. He had also a legal right to have other attorneys substituted in the place of those ’ who had formerly served him to prosecute his appeal. And this is all' that has in fact been done, and of that the plaintiff has no just ground of complaint. If Smith, in his own mind, had at any time determined to abandon the case, he was not precluded from revising his determination, and perfecting his appeal. The plaintiff gained no right to prevent an appeal, until Smith formally, and in an effective way, surrendered to the plaintiff his right to appeal. This was not done. There is no reason why Smith or his attorneys should be restrained. They are but exercising unquestionable legal rights. '

If the interests of Bradley are promoted by Smith’s appeal, this cannot effect his right to do what he has done. Nor is the fact that Bradley is aiding in the prosecution of Smith’s appeal, so long as Smith is proceeding in the exercise of a legal right, any ground for restraining him.

Judgment appealed from affirmed with costs.


author: Per Curiam

text:
    JOHN J. CORBETT, Plaintiff and Respondent, v. LOUIS DE COMEAU, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    Disbursement eor printing—when discretion oe court as to WILL NOT BE DISTURBED.
    The defendant herein presented to the clerk, upon taxation of his costs, <5kc., upon a successful appeal, an item of $28.80 for printing case and points,- which was objected to by plaintiff as excessive and unnecessary. Defendant presented, in answer, the receipted printed bills and the usual affidavit, and the clerk overruled the objection. Plaintiff thereupon obtained an order to show cause why the taxation should not be set aside, and upon the hearing it was ordered that that tire amount should be reduced to $18.00, from which order defendant appeals.

      Held, that the discretion of the judge below in fixing the amount to be allowed as a disbursement, should not be interfered with; also, that the order was not appealable.
    Appeal from order entered at special term, reducing defendant’s disbursements for printing case and points on appeal.

      Coudert Brothers, for appellants, urged:
    I. There is no practice to justify such a motion as was made by the plaintiff. The remedy was by appeal, which should have been founded' on the same papers (Logan v. Thomas, 11 How. Pr. 160; People v. Oaks, 1 Id. 195).
    II. It is obvious that the learned judge below made his order on the theory that the successful brief complained of by plaintiff’s attorney was tod long. There was no pretense that the plaintiff had not paid the full amount charged. As to allowance for printing, see Consalus v. Brotherson, 52 How. Pr. 62; Potter v. Carpenter, 56 Id. 89.

      Frank W. Severance, for respondents, urged:
    I; The order is not appealable. It is a discretionary order. The judge saw fit in his discretion to reduce this item of disbursements, and a general term will not interfere.
    II. This lengthy brief, containing, as it does, mostly matter which might be proper as an oral or printed argument, is in no sense points. “Points” are a concise statement of what a party considers the law, with a citation of authorities, and not an argument in extenso (See Gray v. Schenck, 3 How. Pr. 231, holding that it will not be allowed as a disbursement).
   Per Curiam

opinion for dismissal of appeal with ten dollars costs.


text:
    JOHN J. CORBETT, Plaintiff and Respondent, v. LOUIS DE COMEAU, Defendant and Appellant.

    The order appealed from denies defendant’s motion to compel plaintiff’s attorney to ■ furnish “a sworn statement showing residence, occupation, and present address of plaintiff, &c.,” that the defendant might be enabled to examine the plaintiff before trial. It appcared from the moving papers that the complaint was not served, plaintiff’s proceedings being stayed. Held, that no substantial right was necessarily involved - in the denial of the motion and the case failed to disclose any exigency which demanded the order. At most the matter rested in the discretion of the judge below.
    Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    Appeal by defendant from order, &c.

      Coudert Brothers, for appellant.

      Frank W. Severance, for respondent.

       See post, p. 637.

   Per Curiam

opinion for dismissal of the appeal with ten dollars costs.


text:
    JOSEPH PATRICK, Plaintiff and Respondent, v. DAVID SOLINGER, et al., Defendants and Appellants.
    Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    This is an appeal from a judgment against the defendants, entered on the verdict of a jury.
    The action was for conversion.

      Henry Steinert, for appellants.

      James Henderson, attorney, and S. Jones, of counsel, for respondent.
   Per Curiam.

Judgment and order appealed from affirmed with costs.


text:
    MARY GROGAN, Plaintiff and Appellant, v. NEW YORK & H. RAILROAD COMPANY, Defendant and Respondent.
    Before Sedgwick and. Van Vorst, JJ.

      Decided March 14, 1879.

      L. G. & R. L. Garrettson, attorneys, and Homer A. Nelson, of counsel, for appellants.

      Chauncey M. Depew, attorney, and Elliott F. Shepard, of counsel, for respondent.
   Per Curiam.

Judgment and order appealed from affirmed with costs.


text:
    LOUIS SILVERSTEIN, Plaintiff and Appellant, v. PAMELA L. VULTE, Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    31. Practice.

    1. Resettling findings of law.

      (a) Order denying motion for, affirmed.
    The case was tried before one of the judges of this court, who delivered an opinion and made and filed his findings of fact and law.
    Plaintiff, claiming that the findings of law were not in accordance with the facts found and the opinion, moved before another judge for a re-settlement, which motion was denied.

      Christopher Fine, of counsel, for appellant.

      Albert Mathews, of counsel, for respondent.
   Per Curiam.

Order affirmed, with $10 costs and disbursements.


text:
    D. OGDEN MILLS, Plaintiff and Appellant, v. JOHN M. WATSON, Impleaded, &c., Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.

      Decided March 14, 1879.
    I. Extra allowance.

    1. When may be granted.

      (a) On the dismissal of complaint for non-appearance of plaintiff when the cause is called for trial.

      2. Motion fob, when may be made.
    (a) May be made at a special term for the hearing of motions.
    3. Appealability of.

      (a) Order granting may be appealed from to the general term.
    4. Element in granting, what is not a necessary one.

      (a) The fact of a trial having taken place is not.
    Prior to May, 1876, the plaintiff had taken an assignment of a bond and mortgage made by one Charles L. Cornish.
    In September, 1876, the premises were sold in foreclosure, and a judgment for deficiency was obtained against said Cornish for $36,129.18.
    Cornish was examined in supplementary proceedings, and swore that the defendant Watson had one-sixth interest in the purchase at the time of the purchase, and had paid for his interest before Cornish took the title. They were general speculators in real estate.

      Thereupon the plaintiff commenced an actioíffegaihst che defendants by a complaint, to recover against them as partners, under the authority of Williams v. Gillies, 13 Hun, 422; Coleman v. Eyre, 45 N. Y. 38.
    The defendant Watson amended his answer, setting up the foreclosure judgment as a bar.
    In the month of October, 1878, the case was first reached on the calendar, and inasmuch as the case of Williams v. Gillies,—the decision of which would determine the recovery in this case, —had been argued in the court of appeals, and that court had taken a recess until early in November, the case was, on plaintiff’s application, marked off, and was not again reached until January.
    The case of Williams v. Gillies was decided by the court of appeals in November, 1878. That court reversed the decision of the court below. The doctrine laid down by the court of appeals was conclusive against plaintiff’s right of recovery in this action. The counsel for both plaintiff and defendant were aware of this. Efforts were made to procure a discontinuance of the action on terms mutually satisfactory. They were unsuccessful, and finally the cause was, on January 13, 1879, called for trial at July trial term, and, no one appearing for plaintiff, the complaint was dismissed with costs as to defendant Watson. No motion was at this time made for an extra allowance. Thereafter, on- February 3, 1879, Watson noticed a motion for an extra allowance, to be heard on February 11, 1879, at a special term for the hearing of motions.
    The court, at special term, granted an allowance of $1,806.46, being five per cent, of $36,129.18, the amount of plaintiff’s claim.
    From the order entered on this decision plaintiff appealed.

      D. M. Porter, of counsel, for appellant.
    I. This order is appealable to the general term, and it is proper for the general term to take cognizance of it, and examine it on the merits (People v. New York Central R. R. Co., 29 N. Y. 418, 422; Clark v. City of Rochester, 29 How. Pr. 97; Gori v. Smith, 6 Robt. 563; Commissioners of Pilots v. Spofford, 3 Hun, 57).
    II. The court cannot give more than sufficient to indemnify the party for his expenses in the action upon the facts appearing upon the application (People v. New York Central R. R. Co., supra). Neither can an extra allowance be granted by a judge who did not try the action, unless the amount of expense is stated in the moving affidavits (lb.). “It should be shown not only what the expenses are for which the further allowance is claimed, but also that they have been necessarily, reasonably, and fairly incurred in reference to the trial” (lb.).

    III. Counsel well knew that the case of Williams v. Gillies was controlling, and that it had been decided adversely to the plaintiff’s position, and that no recovery could be had by the plaintiff, after the court of appeals had decided that such an action could not be maintained, and consequently, expenses could not be reasonably, nor fairly, nor necessarily made or incurred —especially when Mr. Knickerbacker went to Mr. Watson to get a discontinuance, he was told that the plaintiff could not recover because of the decision in the court of appeals of Williams v. Gillies (Eldridge v. Strenz, 7 Jones & Spencer, 295). Defendant has not shown the amount of any extra expenses incurred; therefore the order granting an extra allowance was improperly made. The allowance of $1,806.46 was, in any event, exorbitant and unwarranted by the facts. What would have been allowed if -the cause had been tried ? “The application should be made at the circuit, at which the case was tried, or to the justice who held the same, and to none other” (Supreme Court Rule, 47 (3); Saratoga & Washington R. R. Co. v. McCoy, 9 How. Pr. 339; Dyckman v. McDonald, 5 Id. 121).

      B. F. Watson, of counsel, for respondent.
    1. The order appealed from is not appealable (Code of Pro. § 309; Opinion of Hogeboom, J., dissenting, in People v. New York Central R. R. Co., 29 N. Y. 429, 430). There is no direct authority for the position that such discretion is reviewable at the general term. Should the case of People v. New York Central R. R. Co., 29 N. Y. 418, cited supra, be relied on therefor, it may be replied, that in that case the court of appeals merely decided that an order of the kind appealed from was appeal-able to the general term, that the action of the general term in dismissing the appeal was wrong, and consequently reversed the order of dismissal, without, however, in reality, deciding, or being able to decide anything as to what should be the action of the general term in considering the appeal on its merits. At the close of the opinion in the case of Southwick v. Southwick (49 N. Y. 510), the court say : “ This court cannot review the action of the court below in making an extra allowance to the defendant in addition to his taxable costs. It does not appear to have exceeded the maximum limit fixed by the„Code ” (See also Krekeler v. Ritter, 62 N. Y. 372; Stokes v. Dickenson, 5 Sandf. 663; Burhans v. Tibbits, 7 How. Pr. 74; Dickenson v. McElwain, 7 Id. 138; Wilkenson v. Tiffany, 4 Abb. Pr. 98: Union Bank v. Mott, 13 Id. 247).
    II. A trial is not a necessary element for the granting of an extra allowance when a defense has been interposed in a difficult and extraordinary case (Coffin v. Coke, 4 Hun, 618). This case required great care and previous preparation by counsel to be ready to prove and argue to this court, not only that that decision was wrong in principle, and not sustained by authority (all of which labor was incurred and preparation made before the announcement of said reversal), but also that the facts in the case at bar did not bring it within the principle of that decision.
    III. In answer to this objection, it is sufficient to say that the general term of this court has held that the motion is properly made at special term, and need not necessarily be before the same judge (Gori v. Smith, 3 Abb. Pr. N. S. 51).
   Per Curiam.

Order appealed from modified by reducing the amount of the allowance to $750.


author: Sedgwick, J.,

text:
    DAVID B. LEE, Plaintiff and Appellant, v. JOSEPH GARGULIO, et al., Defendant and Respondent.
    Brokers—when principal not relieved op liability to, by REASON OP SUBSEQUENT GUARANTY MADE BY THIRD PARTY.
    The counter-claim herein averred that the defendants were the brokers of the plaintiff in the purchase ,of certain stock, and further alleged, by specific averments, that by their subsequent dealings with said stock at the plaintiff’s request, he became indebted to them in the sum of $8,937, with commissions, which had been demanded.
    The plaintiff, while admitting his liability originally, sought to avoid it, upon the ground that it was to be implied, from a guaranty subsequently made by one Fitler, and from the other facts in the case, that he should in no event be liable to pay to defendants any loss which should accrue upon the sale or repurchase of said stock, or upon the sale of any stock that should be re-purchased in the place thereof.
    The guaranty in question was inclosed in a letter to defendants, which began:
    “ Yours, notifying me of acceptance of my offer by customer at 35, at hand. I accept his conditions as set forth in your letter, and inclose guaranty, &c.” The guaranty inclosed was in these words: “ For and in consideration of one-half the profit on 800 shares, &c., I hereby guarantee the holder of said 800-shares against all or any loss whatsoever, and further agree, in case of decline of said stock, below 85, to deposit margin, if called on to do so, to cover all or any decline as fast as it may bo made in said stock. Order’s to sell and re-purchase said 800 shares, or any part thereof, to be given exclusively by me, the-undersigned, for a period of sixty days from the date hereof.”'
    Before Sedgwick and Vah Vorst, JJ.

      Decided April 7, 1879.

      Held, by the court, that the defendant, in assenting to the operation of the above, and agreeing to act upon it, did not thereby release the plaintiff from his liability on the original agreement. Ho fact was accomplished by the guaranty, which was inconsistent with the first arrangement.
    There being nothing else in the testimony sufficient to make-, an issue as to the counter-claim, the direction of a verdict for defendant was properly made.
    Appeal from judgment entered on verdict for defendant under the direction of the court.

      Stickney & Shepard, attorneys, and Albert Stickney, of counsel, for appellants.

      Wetmore & Jenner, attorneys, and Edmund Wetmore, of counsel, for respondents.
   Sedgwick, J.,

wrote for affirmance with costs,, holding as above laid down.

Van Vorst, J., concurred.


text:
    HENRY C. DART, Plaintiff and Respondent, v. WRIGHT GILLIES, and Others, Defendants and Appellants.
    Ho point of interest involved in this case.

      Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.

      James M. Fiske, attorney, for respondent.

      Wingate & Cullen, attorneys, for respondent.
   Per Curiam.

Judgment reversed, unless plaintiff deduct $67.75 from the verdict, and in case of such deduction, the judgment is affirmed, without costs of appeal to either party.


text:
    GEORGE W. VAN ALLEN, and Others, Plaintiffs and Respondents, v. J. K. WRIGHT, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    The only question involved is whether the evidence was sufficient to call for a submission of the cause to the jury, and to sustain the yerdict. No point of any general interest was discussed or determined.

      C. B. Smith, for appellant.

      Jacob F. Miller, for respondent.
   Per Curiam

Judgment appealed from, and order denying motion for new trial affirmed, with costs.


text:
    LOUISE DOUAI WEHLE, Plaintiff and Appellant, v. WILLIAM C. CONNER, Sheriff, &c., Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.

      Decided April 7, 1879.
    Questions appearing on the face of the record, which the court of appeals, in its reversal of the judgment appealed from, do not pass upon, but which, if they had substance, would lead to an affirmance, must be regarded on a new trial ordered by that court (when the questions are for the first time raised), as of no substance.
    Appeal by plaintiff from a judgment entered on a verdict for plaintiff, for six cents damages, directed, by the court.

      Charles Wehle, for appellant.

      Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, of counsel, for respondent.
   Per Curiam.

Opinion for affirmance, with costs.


text:
    SARAH VALEAU, Plaintiff and Respondent, v. ROBERT W. SMITH, Defendant and Appellant.
    Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    Appeal by defendant from judgment and from order denying motion for new trial. This case involves only questions of fact.
   Van Vorst, J.,

wrote for reversal of the judgment, with costs, to abide the event.

Sedgwick, J., concurred.


author: Speir, J.,

text:
    ROSWELL D. HATCH, Plaintiff and Appellant, v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Impleaded with J. Nelson Tappan, Chamberlain of said city, and John J. Bowes, Respondent.
    Before Van Vorst and Speir, JJ.

      Decided May 16, 1879.
    NEW YORK CITY.
    1. Grades of streets, changing of, awards for.
    1. Award of damages under chapter 52, of the Laws of 1852,-made to a certain named peí son by the board of assessors, and part paid by the comptroller, with the assent of such named person, to the collector of assessments and cleric of arrears, in discharge of certain assessments for certain improvements theretofore laid upon the property, in respect whereof said award was made, and balance paid under the provisions of said chapter to the city chamberlain.

      (a) Claimant in opposition to the person named in the assessment list as entitled thereto, Remedy of.
    1. Has no action against the mayor, etc., for the part paid to the collector and clerk of arrears.
    8. Has an action against the chamberlain for the part remaining in his hands.
    The appeal presents another phase of the case of Hatch v. Bowes, impleaded, reported 43 N. Y. Super.

      Ct. 426, where a statement of the case will be found. The appeal the decision wherein is reported in 43 N. Y. Sup. Ct. was from an order overruling a demurrer interposed by defendant, Bowes. After the decision of that appeal, the defendant, Bowes, and defendants, The Mayor, &c., and J. Nelson Tappan, chamberlain, &c., answered.
    The trial of the issues joined by these answers resulted in a judgment dismissing the complaint as to the mayor, &c., with costs, adjudging that, as against defendant, Bowes, the plaintiff was entitled to the whole award, with costs, and that said Tappan, chamberlain, pay to plaintiff the sum of $336.39, the portion of the award remaining in his hands, with such interest as had actually accrued to him thereon, with costs.
    The only appeal taken was that of plaintiff, from . that part of the judgment which dismissed his complaint as to the mayor, &c.

      James A. Deering, attorney, and of counsel, for appellant.

      J. A. Beall, and Arthur Berry, with William C. Whitney, counsel to the corporation, of counsel, for the respondent.
   Speir, J.,

wrote for affirmance, holding the propositions stated in the head-note.

Van Vorst, J., concurred.


text:
    ABRAHAM RICH, Jr., Plaintiff and Respondent, v. JAMES H. LYLES, et al., Defendants and Appellants.
    Before Van Vorst and Speir, JJ.

      Decided May 16, 1879
    Appeal by defendant from judgment and from order denying motion for new trial.
    In this case the plaintiff agreed to deliver to the defendant at Havana, Cuba, a specified quantity of “ good olear ice. ’ ’ at an agreed price, for which plaintiff recovered judgment herein.
    On the trial there was evidence on behalf of plaintiff that the ice was in good condition at the time of shipment, in Maine, and there was a conflict of testimony as to its condition and quality when delivered. The defendant offered to show by the testimony of experts that ice under certain condition is subject to a peculiar change called “ striking,” which greatly diminishes its value, rendering it no longer good clear ice, and which is more difficult of detection and deceptive in appearance than ordinary changes.
    The principal question involved herein is as to the admissibility of this testimony, which was excluded on the trial.

      Wilson & Wallis, attorneys, and Luther R. Marsh, of counsel, for appellants.

      Benedict, Taft & Benedict, attorneys, and Addison Brown, of counsel, for respondents.
   Speir, J.,

wrote for reversal and new trial.

Van Vorst, J., concurred.


text:
    ANNA M. DOWNES, Plaintiff and Appellant, v. DAVID SILBERSTEIN, Defendant and Respondent.
    Before Van Vorst and Speir, JJ.

      Decided May 16, 1879.
    Appeal from judgment entered upon a verdict for defendant, directed by the court.
    This action was brought to recover $2,000, on the alleged ground that the defendant, in building an extension to his house, encroached upon plaintiff’s premises.
    The case involves only questions of fact.

      H. Thompson, attorney, and G. A. Clement, of counsel, for appellant.

      Julius Lippman, for respondent.
   Per Curiam.

Memorandum for affirmance with costs.


text:
    BENJAMIN WHITWORTH, et al., Plaintiffs, v. THE ERIE RAILWAY CO., Defendant.
    A contract made by one carrier for the transportation of goods over his own and connecting lines, adopted and acted upon by the other carriers, inures to the benefit of all thus ratifying it—e. ff., one containing a clause exonerating the carrier and the connecting lines from liability from loss by fire, &c.

      Meld, in this case, that such exoneration did not extend to case of loss by fire, resulting from defendant’s negligence; but proof of the destruction by fire does not, of itself, warrant any inference that such fire resulted from the negligence of the defendants; and the burden is upon the plaintiffs to establish the fact of such negligence by a clear preponderance of credible testimony.
    Before Sedgwick and Van Vorst, JJ.

      Decided May 16, 1879.
    The defendants in this case were bound to deliver the goods to the succeeding carrier, and witliiii a reasonable time, and in accordance with the established usage and course of business. If, through their negligence, in omitting to make such delivery, the goods were destroyed by lire, they are responsible for the loss, notwithstanding the restrictive clauses contained in the bill of lading. But the burden of proof in establishing the fact of such negligence, and that the loss sustained is in consequence thereof, is upon the plaintiff.
    A submission of the question to the jury was not called for, inasmuch as the preponderance of evidence in favor of the defendant, upon the point in controversy, was such that a verdict against them could not be sustained.
    Plaintiff’s exceptions, ordered to be heard in first instance at general term, complaint being dismissed.

      Scudder & Carter, attorneys, and George A. Black, of counsel, for plaintiff.
    Shipman, Barlow, Larocque & MacFarland, attorneys, and Joseph Larocque, of counsel, for defendant.
   Per Curiam.

Plaintiff’s exceptions overruled, and judgment, that complaint be dismissed, with costs, ordered.


author: By the Court.—Sedgwick, J.

text:
    DAVID SOLINGER, Plaintiff and Respondent, v. EDWARD EARLE, Impleaded, &c., Defendant and Appellant.
    Before Sedgwick and Speir, JJ.

      Decided June 13, 1879.
    In this case the plaintiff sought to recover the amount of a certain note given by him to a creditor of plaintiff’s brother-in-law, to induce said creditor to sign a composition deed, which relief the court on appeal denied him (see ante, 80). Plaintiff, in this motion, asks for a re-argument of appeal.
    Gilmour v. Thompson, 49 How. Pr. 198; and Comstock v. Hier, Ct. App. MSS.:—Held, not applicable, and distinguished from present case. Maxim, Mb turpi causa, non oritur adño,—applied.
    Motion for re-argument after order, of general term reversing the judgment below.

      A. R. Dyett, for motion.

      Mr. Scott, opposed.
   By the Court.—Sedgwick, J.

The counsel for appellant bases his motion upon the suggestion, that the general term overlooked, or did not give due effect to the cases of Gilmour v. Thompson, 49 How. Pr. 198, and Comstock v. Hier, court of appeals, MSS. The cases cited are harmonious with the opinion of the general term in this case. In Comstock v. Hier the fact was, that the plaintiff had an action for his note, and no part of his action rested upon proof of an illegal transaction between him and defendant, in the course of which, he had delivered the note to him. In Gilmour v. Thompson, the plaintiff had a right of action, although the transaction was illegal, because he was the debtor, and so, in the estimate of law, the victim of oppression. In the present case, the plaintiff was a party to the illegal transaction, but not a victim. TTis participation in it was voluntary. He cannot, therefore, avail himself of circumstances that would otherwise show a conversion by defendant. Without proof of the illegal act, the presumption would be that the defendant held the note, by voluntary delivery and value. This presumption could be rebutted only by testimony as to the illegal transaction. But such testimony the law does not allow the plaintiff to give, for a right of action cannot spring ex turpi causa.

Motion denied with ten dollars costs.

Speir, J., concurred.


text:
    DAVID SOLINGER, Plaintiff and Appellant, v. HENRY R. EGELSTON and OSCAR C. WHEELER, Impleaded, Defendants and Respondents.
    Before Sedgwick and Speir, JJ.

      Decided June 13, 1879.
    Appeal from judgment in favor of defendants on two demurrers, severally interposed by them to complaint.

      A. R. Dyett, for appellant.

      Scott & Bird, for respondents.
   By the Court.—Sedgwick, J.

The learned judge below followed the decision of Solinger v. Earle, impleaded, &c. (ante, p. 80), and his judgment must be sustained. There has been at this term a motion for re-argument in Solinger v. Earle, which we have denied (ante, p. 604).

Judgment affirmed, with costs.

Speir, J., concurred.


text:
    CHARLES C. HOVEY and WILLIAM P. DOLE, Plaintiffs and Respondents, v. AUGUSTUS R. McDONALD, Defendant and Appellant.
    I. LIEN ON CLAIM.
    1. Trover against lienor.

      (a) Where the lienor obtains possession of the proceeds resulting from the claim, and converts them to his own use, lie is liable to the lienee as for a conversion, to the extent of the lien.

      1. Receiver of proceeds, effect of paying over to lienor under order of court.

      (a) Where the order is reversed, and the lienor directed to repay, the fact of liis having obtained possession from the receiver is no defense to the action of trover.

    II. RES AD JUDICATA.
    1. In an action commenced by a lienee against a lienor, to have liis lien adjudged valid, and enforce payment thereof, the lienor appeared and answered; his answer was struck out by the court, and final judgment given in favor of the plaintiffs, directing the lienor to pay to the plaintiffs the amount claimed by them, and adjudging that plaintiffs have a lien, as claimed by them.

      Held,

    in an action by the lienee against the lienor, for a conversion of the subject of tilo lien, that the judgment in the action to have the lien adjudged valid, barred the lienor from contesting the existence of the lien or the validity of the contract under which it was claimed.

      (a) Submitting to jurisdiction. After a party submits himself to the jurisdiction of a court, it is too late for him to question its jurisdiction in another tribunal.

      Before Sedgwick and Speir, JJ.

      Decided June 13, 1879.
    3H. Supreme Court of District of Columbia, is a court of general jurisdiction.

    Appeal from an order denying a motion to vacate an order of arrest.
    Defendant had a claim pending before the British and American Claims Commission, for cotton destroyed by the United States during the late civil war. Strictly speaking, under the treaty of Washington, this was a claim of the British Government against the United States, and defendant’s claim was against his own government. But, in common parlance, the claims which, under that treaty, were presented to the commisssion for property destroyed, were known and spoken of as the claims of the individual owners of the property. Plaintiffs were employed by defendant to prosecute this claim, under a written agreement showing they were to be paid one-quarter of the amount which should be allowed in respect of the claim, and were given a lien therefor on said claim, and any draft, money, or evidence of debt which should be paid or issued thereon. The services were rendered by plaintiff, a.s agreed on, and an award was made in respect of the claim of $197,100, in gold.
    After the allowance of the award, Mr. McDonald, in order to defraud the plaintiffs, made an assignment of it to one William White.
    The plaintiffs then, on October 2,1874, began a suit against McDonald and White in the supreme court, of the District of Columbia, to set aside such fraudulent assignment, to have their lien adjudged valid, and to enforce payment of their claim from the award. McDonald and White were personally served, appea,red and submitted to the jurisdiction of the court, and an injunction was issued restraining either of them from collecting the money.
    About the same time, one Thomas J. Phelps, claiming the award as assignee in bankruptcy of McDonald, also began an action in the same court against him and White, in which action another injunction was issued.
    February 16, 1875, an order was entered by the consent of all the parties to both suits, vacating both injunctions, permitting White to collect half the award from the British Government, and directing George W. Riggs, of Washington, to collect the other half, and hold it, subject to the claims, liens and rights of the plaintiffs herein, Hovey and Dole, and of the assignee, Phelps, to be determined by the further decree of the court. It was further ordered that Riggs, the receiver, should invest the money in the bonds in the District of Columbia.
    Riggs drew the money, and invested it in bonds of the District of Columbia.
    McDonald and White demurred to the plaintiff’s bill in equity ; the court at special term {sustained the demurrer, dismissed their bill, and, on June 28, 1875, made an order directing the receiver to pay over the funds in his hands to McDonald and White. Upon receiving this order, the receiver handed the bonds over to McDonald, assigning the certificates to him. McDonald then requested the receiver to sell the bonds for him. This was done. He received the money, and, leaving Washington hurriedly, secretly, and by unusual conveyance, took it to New York.
    The plaintiffs appealed to the general term from the order sustaining the demurrer to their bill, and there it was reversed, and an order1 was made directing McDonald to repay the money into the registry of the court, which he refused to do.

      McDonald and White then interposed an answer, and a large amount of testimony was taken upon the merits. Meantime the plaintiffs applied to the courts to have McDonald punished for contempt, and finally, the general term, having ordered his answer to be struck out for his contempt in April, 1878, gave final judgment in favor of the plaintiffs.
    This judgment, after reciting the inception of the lien, the fraudulent assignment to White, &c., directed McDonald and White to pay to the plaintiffs $49,297.50, and further ordered, adjudged and decreed that the complaint have a lien upon the claim of McDonald, and upon any draft, money evidence of indebtedness or proceeds thereof.
    Upon this state of facts, McDonald being found in New York, this action was begun. The plaintiffs claim that when the receiver invested this money in the bonds of the District of Columbia, their liens attached to them at once, and that, when McDonald sold these bonds and appropriated their proceeds to his own use (no matter how they came into his possession), he was guilty of conversion, and is now guilty of a wrongful detention of personal property, namely, $49,297.50, belonging to the plaintiffs.
    Defendant, having been arrested upon an order of arrest, moved at special term to vacate the order, the motion was denied, and defendant appealed from the order entered on such denial, to the general term of this court.

      C. W. Bangs, attorney, and of counsel, for appellant,
    submitted an elaborate brief, and, among other things, urged strenuously that defendant, having obtained possession under the order of the supreme court of the District of Columbia, had rightfully obtained possession, and had full right to make any subsequent disposition or appropriation. that he pleased, without incurring thereby any liability to the plaintiff.

      Douglas Campbell, attorney, and of counsel, for respondent.
   Speir, J.,

wrote for affirmance.

Sedgwick, J., concurred.


text:
    DAVID H. DE LEON, Plaintiff and Respondent, v. MANUEL ECHEVERRIA, Defendant and Appellant.
    Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.
    In this case the court held, the plaintiff having been unwarrantably discharged, his damages are,prima facie, “the amount of wages for the Mil term ” (Howard v. Daly, 61 N. Y. 362).
    On the trial the defendant requested the court to charge, as affecting the question whether there was a hiring for a year, that the jury should look at all “ the probabilities of the cuse, and in so doing consider the absence of any protest on the part of the plaintiff, when he was discharged.” The court so instructed, adding: “You will also consider that that was not made a point of by the defendants at the time.” Held, that the addition did not constitute error; if it was fair to look at plaintiff’s failure to insist on his rights under the contract, as he claimed it was, it was equally fair to consider the defendant’s attitude, by silence or otherwise.
    The case contains no exceptions to the charge, and the court did not specifically consider the points raised in relation thereto, by appellant on the appeal ; but held, that as a whole, it presents no ground upon which a new trial can be granted.
    Appeal from' judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Coudert Bros., for appellants.

      Lockwood & Lockwood, attorneys, and James Clark, of counsel, for respondents.
   Freedman, J.,

wrote for affirmance, with costs, holding in substance as above.

Sedgwick, J., concurred. .


text:
    WILLIAM F. HAMMOND, et al., Executors, &c., Plaintiffs and Appellants, v. CHRISTIAN SCHULTZE and FRIDA SCHULTZE, Defendants and Respondents.

    I. Appeal.

    1. When questions of fact not considered on.
    Where the appeal book shows that upon the trial plaintiff’s counsel excepted to the refusal of the court to permit the whole case to go to the jury, it nowhere appearing that a request to that effect was made, and it affirmatively appearing that the only question which the court was requested to submit was a specific question, not involving the whole case, according to plaintiff’s view; it also appealing that no motion for a new trial, on the minutes or on a case, was made.
    I-Ield,
    The court, on appeal from the judgment, cannot consider questions of fact.
    H. Trial.

    1. Evidence admitted upon, contrary to section 829, Code Ciy. Pro.
    Upon the trial, one of the defendants admitted that she had possession of the property, for the conversion of which the action was brought, but claimed to have a lien upon it, under the statutes of New Jersey, for rent due her by plaintiff’s testator. To substantiate said claim, she was allowed, against - plaintiff’s objection and exception, to prove, by her own testimony, a hiring, by the deceased, of a part of her house, at an agreed rental, the occupation thereof, &c., &c.
    Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.
    Held,
    error, as involving personal transactions between the deceased and a party interested in the event, as against executors.

      Abo held, that defendant’s claim that plaintiff opened the way for such testimony, by examining one of the executors on the same point, is not well founded, he having been examined simply as to the language used by the defendants in the assertion of their claim for unpaid rent, as a ground for refusing to give up the property when demanded.
    HI. Trover.

    1. When defendant not liable in.
    A mere demand and refusal to deliver, without proof either of possession or control over the property claimed to have been converted, held, not sufficient to make the defendant, Christian Schultze, liable in trover herein. This, though the refusal was based upon the claim of a lien. If there was any wrongful detention, it was by the other defendant.
    Appeal by plaintiffs from j adgment.
    This action was brought by the plaintiffs, as executors of the last will of William II. Hammond, deceased, to recover damages for the conversion of certain personal property.
    The defendants interposed separate answers to the complaint.
    Defendant, Christian Schultze, admits the former ownership of the property by deceased, and sundry unimportant averments, and denies all other allegations. - -

      The defendant, Frida Schultze, admits the same facts, and also the detention of the-property in question by her, and claims, as an affirmative defense, that she had a lien thereon under the laws of the State of New Jersey, for rent due her from deceased.

      H. D. Betts, for appellants.

      William Bro. Smith, for respondents.

       A motion for re-argument of this decision, so far as it relates to the dismissal of the complaint as to defendant, Christian Schultze, was denied, Dec. 1, 1879, for the reasons herein stated.

   Freedman, J.,

wrote (holding as above), for affirmance with costs, as to the defendant, Christian Schultze, and for a reversal and new trial as to the other defendants, costs to abide the event.

Sedgwick, J., concurred.


text:
    THE NEW YORK GUARANTY AND INDEMNITY CO. v. VALENTINE GLEASON.

    Before Curtis, Sedgwick and Freedman, JJ.

       See 43 Super. Ct. 551. Decision in above case reversed by court of appeals. See 9 Weekly Dig. 373.

   Per Curiam.

Judgment affirmed, with costs.


text:
    FERDINAND FOLLER, Plaintiff and Respondent, v. HENRY J. LIPPE, Defendant and Appellant.
    Before Sedgwick and Freedman, JJ.

      Decided June 13, 1879.

      Appeal from judgment in favor of plaintiff, entered, upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    This case involves mainly questions of fact.

      John B. Pannes, for appellant.

      Simon Sultan, for respondent.
   Freedman, J.,

wrote for affirmance, with costs.

Sedgwick, J., concurred. ,


text:
    JOHN HICKEY, Plaintiff and Respondent, v. OWEN O’CONNOR, Defendant and Appellant.
    Before Speir and Freedman, JJ.

      Decided June 13, 1879.
    Examination before trial.

      When not granted. The order in this case was held to have been properly vacated, under the decisions of this court, in Levy v. Loeb, Corbett v. De Comeau, and Batterson v. Sandford.
    This is an appeal from an order vacating an order granted under section 873 of the Code of Civil Procedure.

      George W. Wilson, for appellant.

      Walter Durack, for respondent.
   Freedman, J.,

wrote for affirmance, with costs.

Speir, J., concurred.


author: By the Court.

text:
    THE GERMAN SAVINGS BANK, &c., v. AGATHA HABEL, and Another.
    Before Freedman and Speir, JJ.

      Decided June 13, 1879.
   By the Court.

The order made and entered on the 18th of April, 1879, must be affirmed, with costs.