author: Speir, J.

text:
    WILLIAM M. LLOYD, et al., Plaintiff and Respondent, v. WILLIAM N. BURNS, Defendant and Appellant.
    Before Freedman, Van Yorst and Speir, JJ.

      Decided December 9, 1874.
    PLEADING.
    An answer to a complaint in an action to recover on promissory notes that alleges that the defendant has not sufficient information on which to form a belief as to whether or not the alleged, maker ever made the notes, and therefore defendant denies, &c., is insufficient, and is not a denial of the complaint in this respect.
    The defendant must answer that he has no knowledge nor information sufficient, &c. (Edwards ». Lent, 8 Sow. Pr. S. 28).
    But, in the case at bar, the defendant admitted the indorsement of the note by the corporation maker, and the indorsement was of a character that precludes the defense of denial of the making claimed by him.
    Appeal from a judgment. The opinion of the court sets forth the case sufficiently.

      William C. Traphagen, for appellant.

      Charles Matthews, of counsel.

      Fithian & Clark, for respondents.
   Speir, J.

This is an appeal from a judgment entered upon the decision and findings before a judge in a trial without a jury.

The action is to recover from the defendant, as trustee, the amount of six promissory notes for five hundred dollars, each purporting to be made by the Lippeat Silver Plating and Engraving Company, and not paid at maturity. The plaintiff at the trial waived all claim on the note dated April 25, 1871, set out in the complaint.

The defendant’s indebtedness is claimed to have arisen out of his failure, as a trustee in said company, to have filed and published a report by the president and secretary of said company, as required by the twelfth section of the Act “ To Authorize Manufacturing,” &c., passed February 17, 1848.

The answer alleges that the defendant has not sufficient information on which to form a belief as to whether or not the Lippeat Silver Plating and Engrav- ■ ing Company ever made any of the notes mentioned in the complaint, and he therefore denies the same.

The Code requires “that the defendant has no knowledge or information,” &c. The word knowledge is omitted. And the plaintiffs claim that this is not a denial in the answer. The case of Edwards v. Lent, in 8 How. Pr. 28, decided by Mr. Justice Harris, disposes of this question. He says, the answer will be insufficient if it denies merely upon information, the truth or falsity of which is within the defendant’s own knowledge. But the answer admits that the several notes were duly endorsed by the company, and delivered by the corporation to one Clark, who, for value, and before maturity, endorsed the same to the plaintiffs. The contract of endorsement was not merely to transfer the paper, but it is a contract that the makers were competent to contract, and imports a guaranty by the endorser that the mak- . ers were competent to contract, in the character in which, by the terms of the paper, they purported to contract (Erwin v. Downs, 15 N. Y. 576). And it is further held, that the endorser is not discharged though the name of the maker be forged (1 Comstock, 113). By this admission in the answer, that the corporation endorsed the note, the defendant is precluded from setting up the allegation in the answer that the defendant had denied the making of the notes.

Furthermore, the defendant said that he was a trustee of the corporation, and it is to be inferred by his position, that he must have known all that he did .know on the subject from knowledge acquired personally rather than from information.

The notes, as the case stands, constitute an indebtedness against the corporation, for which the defendant, as a trustee, became responsible. The judgment must, therefore, be affirmed with costs.

Freedman and Van Vorst, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    AUGUST BELMONT, Plaintiff, v. ELIAS PONVERT and JUANA, his wife, Defendants.
    COSTS IN EQUITY CASES
    Do not depend upon any statute, nor absolutely upon the determination of a cause.
    • They rest in a sound discretion, to be exercised upon a thoughtful consideration of all the circumstances in the case. They depend upon the conscience and a satisfactory adjustment of all the merits of the case.
    A litigation for costs is never favored in a court of equity.
    In the case at bar, Held, that the decision of the court below should be sustained, unless in 4. case of palpable abuse of the discretion.

      Before Monell, Ch. J., Sedgwick and Speib, JJ.

      Decided December 9, 1874.
    Appeal from a judgment of the special term.

      Messrs. Barlow, Laroque & Macfarland, for plaintiff.

      W. W. Macfarland, of counsel.

      Mr. C. W. Sandford and Mr. J. S. Lawrence, for defendant.
   Speir, J.

This case was argued before the general term, 1872, and the case and opinion are fully reported in vol. 35 of the Superior Court reports, 208 (3 Jones and Spencer).

The general term decided that the plaintiff had no interest in the rent of the premises in question, and no estate or interest in the lands.

The learned judge below gave judgment for the plaintiff, and bis decision was in accordance with the opinion of this court at general term above referred to, except awarding costs to the plaintiff.

As to these costs, he decided that no valid reason was shown why the premises should not be sold, and the proceeds applied as provided for in the agreement entered into between the defendant, Elias Ponvert and Philo S. Shelton, with the plaintiff, in 1846, and that Ponvert having contested this suit on the ground that the plaintiff had no right to institute and maintain it, and having been unsuccessful in his defense, he decided that the plaintiff was entitled to judgment against the defendant Elias Ponvert, for costs of the action, but that the costs be paid out of the proceeds of the sale, if the same were sufficient to pay all the liens and claims, exclusive of such costs, in full. If dot sufficient for that purpose, then the plaintiff may collect on the judgment of the defendant Elias Ponvert, personally, such costs.

Both parties filed exceptions.

The question is, were the costs properly imposed ? Costs in a court of equity do not depend upon any statute, nor do they absolutely depend upon the determination of a cause. They rest in a sound discretion to be exercised upon a thoughtful consideration of all the circumstances. They depend upon the conscience and a satisfactory adjustment of all the merits of the case. By common consent a litigation for costs is never favored in a court of equity The learned judge who heard the case at great length at the special term, had an opportunity to ascertain and determine all the equities between the parties. It seems to me that this court ought not to control his discretion, except in case of its palpable abuse. It is quite impossible from an examination of the case to say there was any improper exercise of discretion in awarding the costs, as the learned judge has done. I agree with him there is not only no good reason shown why the premises were not sold, but I think, it was the plain duty of the defendant Ponvert to sell them in charge of his obligations i ader his contract with the plaintiff.

Judgment should be affirmed, with costs.

Sedgwick, J., concurred.

Monell, Oh. J., dissented, but rendered no opinion.


text:
    SAMUEL D. HOVEY, et al., Plaintiffs and Appellants, v. THE RUBBER TIP PENCIL COMPANY, Defendant and Respondent.
    Before Monell, Ch. J., Sedgwick and Speir, JJ.

      Decided December 9, 1874.
    BOND IN CASE OP INJUNCTION.
    No greater sum than that mentioned as a penalty in a bond given upon the issuing of an injunction, can be recovered in an action, or in proceedings on motion against the sureties.
    In the case at bar, eight hundred and twenty dollars and fifty-seven cents, was the amount of damages sustained. The court directed the sureties to pay five hundred dollars of the damages, and one hundred and thirty-five dollars costs of the motion, reference, &c., for the ascertainment of the damages, and that the defendant pay the balance.

      Held, That the sureties could not be compelled to pay any sum beyond or in excess of the five hundred dollars named as a penalty in the bond.
    Appeal from an order made at special term, confirming the report of the referee to whom it was referred, to ascertain and report the damages sustained by the defendants, by reason of the inj unction issued herein, to which it had been finally decided by the court that plaintiffs were not entitled, and overruling plaintiffs’ exceptions thereto. thereto.................
    The report was in all things confirmed, and an order entered, directing the sureties on the bond to pay to the defendant the sum of six hundred and twenty-five dollars, and directing a judgment to be entered against the plaintiffs for the deficiency. The plaintiffs appealed from this order.

      Ambrose C. Monell, for appellants.

      John S. Washburn, for respondent.
   Speir, J.

The undertaking upon the issuing the order of injunction was executed by the sureties alone, and not by the plaintiffs. By its terms the sureties “ undertook in the sum of five hundred dollars, that the said plaintiffs will pay to the defendant so enjoined, such damages, not exceeding the sum mentioned, as he may sustain by reason of the said injunction,” &c.

The court below decided that the obligors who executed the said undertaking pay to the defendant or his attorney, on demand, the whole amount of said damages, the sum of five hundred dollars being the amount of said damages specified in their said undertaking, together with the further sum of one hundred and twenty-five dollars, expenses of said reference, and also ten dollars costs of the motion, amounting in all to the sum of six hundred and thirty-five dollars, and that the defendant have leave, and permission was granted to prosecute said undertaking in case the said obligors shall fail to pay said sum on demand.

The question is presented whether the obligors can be forced to pay, beyond the penalty of the bond, the further sum of one hundred and twenty-five dollars, being - expenses of the reference, and the ten dollars costs of the motion, making in all fhe sum of six hundred and thirty-five dollars, while their undertaking is limited to a sum not exceeding five hundred dollars.

By the force and effect of their contract, the obligors are limited to .the-extent, of .their., engagement, for by their undertaking they engaged that the principal, who obtained the order of injunction, would pay to the parties enjoined damages not exceeding the sum of five hundred dollars, as they might sustain by reason of. the injunction, if the court should finally decide their principal was not entitled to it. “ Such damage to be ascertained by a reference, or otherwise as the court should direct.” The same legal obligation which binds them to answer to the extent of five hundred dollars in the contingency named, protects them from paying a larger sum when the contingency has taken place. I am constrained to say that in any view of the defendant’s rights, they can not recover anything beyond the amount specified in the penal part of the bond. The cases cited by the respondents (Methodist Church v. Barker, 18 N. Y. 463; Patterson v. Bloomer, 7 Abb. N. S. 376; Lavett v. Dabney, 40 How. Pr. 277), do not present the precise question. In none of them does-it appear that the amount in which the obligors were sought to be held exceeded their undertaking. Besides,, where the law clearly fixes the liability of a party, as it does when the measure of the obligation is by a certain sum named in his bond, reference to authorities is not necessary. Under the authority of the case of Lavett v. Dabney (40 How. 277), judgment against plaintiff should be reversed.

The order should be reversed, with costs to the appellant to abide the event.

Sedgwick, J., concurred.

Monell, Ch. J., took no part in the consideration or decision of the case.


author: By the Court, Monell, Ch. J.

text:
    JACOB LEVY, et al., Plaintiffs and Respondents, v. CALEB H. BURGESS, Defendant and Appellant.
    CONTRACT FOR THE SALE AND DELIVERY OF RAILROAD 00. BONDS, INDORSED BY A STATE.
    The contract provided for the sale and delivery of Alabama and Chattanooga first mortgage, eight per cent, bonds, indorsed by the State of Alabama, &e.

    Twenty bonds of one thousand dollars each, of the character described, were tendered on the contract, each of which bore the following indorsement.
    “STATE nroOBSEMENT.”
    “In pursuance of certain acts of the general assembly of the State of Alabama, namely, an act approved February 19, 1867, entitled 1 An act to establish a system of internal improvements in the State of Alabama,’ and an act approved September 33, 1868, entitled ‘An act to amend the law to establish a system of internal improvements in the State of Alabama,’ and an act approved November 17, 1868, entitled ‘An act relating to the Wills Valley Railroad Company, and the Northeast and Southwest Alabama Railroad Company.’
    “The State of Alabama hereby indorses this bond, and becomes liable for the payment ;of the principal and interest thereof, the Alabama and Chattanooga Railroad Company having complied with the conditions upon which the undersigned, governor of the State of Alabama, is required, on the part of the State, to give such indorsement.
    Before Mokell, Oh. J., and Curtis, J.

      Decided January 4, 1875.
    “In witness whereof, the undersigned, governor of the State of Alabama, has hereto set his hand, and caused to be affixed [i. s.] hereto the seal of the State of Alabama, the first day of January,. A.D. 1869.”
    The indorsements on eight of these bonds were signed “W. EL Smith, Governor,” and upon the remaining twelve bonds the indorsements were signed “ W. H. Smith.”

      Held, That all of these bonds were duly and legally indorsed by the State of Alabama, and in that respect fulfilled the terms of the-contract';
    That the official character and position of W. H. Smith, appearing fully in the body and in the attestation clause of the instrument of indorsement, and being therein fully mentioned and described, the addition of the office or official title to the signature of the governor, was of no consequence whatsoever, and would have been supererogative and useless.
    The action was to recover damages for the nonperformance by the defendant of the following contract: “ $20,000. “ LTew York, Aug. 28, 1872.
    “ I have bought of Levy & Borg, twenty thousand dollars of Alabama and Chattanooga, first mortgage, eight per cent, bonds indorsed by the State of Alabama,, numbers to run below four thousand, July, 1872, coupons on, at eighty and a half cents on the dollar, payable and deliverable in thirty days from date ‘flat,’ with interest at the rate of per cent, per annum, each party having the right to call for deposits of ten percent. during the pendency of this contract.
    “ Caleb H. Burgess.”
    The plaintiffs proved an offer to deliver twenty one-thousand-dollar bonds specified in the contract, each having the following indorsement:

      “STATE ENDORSEMENT.”
    “ In pursuance of certain acts of the general assembly of the State of Alabama, namely, an act approved February 19, 1867, entitled ‘ An act to establish a system of internal improvements in the State of Alabama,’ and an act approved September 22, 1868, entitled ‘ An act to amend the law to establish a system of internal improvements in the State of Alabama, and an act approved November 17, 1868, entitled ‘An act relating to the Wills Valley Railroad Company, and the Northeast and Southwest Alabama Railroad Company.
    “ The State of Alabama hereby indorses the bond, and becomes liable for the payment of the principal and interest thereof,' the Alabama and Chattanooga Railroad Company having complied with the conditions upon which the undersigned, governor of the State of Alabama, is required, on the part of the State, to give such indorsement.
    “In witness whereof, the undersigned, governor of' the State of Alabama, has hereto set his hand, and. [ir. s.] caused to be affixed’ hereto the seal of the States of Alabama, this first day of January, A. D. 1869.”’
    Eight of which indorsements were signed,
    “ W. H. Smith, Governor.”

    And twelve were signed,
    “ W. H. Smith.”
    On the day before the contract matured, it was. agreed that the defendant should call at plaintiffs’ the-next day at or about twelve o’clock, to receive the bonds. At that hour the defendant called to receive the bonds, and was told the plaintiffs had not them ; that the party from whom they had bought them or were to have them, had tendered them some bonds which were not correct, twelve of them not being signed by the governor, as governor. Defendant told plaintiffs that up to quarter past two, they might deliver the bonds to Messerole & Trumbull. If they came in all right they would receive them for Mm.
    The twenty bonds, eight signed by the governor as governor, and twelve without such addition, were tendered to Messerole & Trumbull. They refused to receive them for the reason of the omission of “ Governor ” after the signature.
    The bonds were sold, after notice to the defendant, at a loss of two thousand and seventy-one dollars and ninety-nine cents. „
    The defendant’s counsel offered to prove by parol, that the parties to the contract meant and intended by the words “ indorsed by the State of Alabama,” that the bonds should be indorsed by the governor as governor, or that the word “ Governor” should be appended to that officer’s signature. The court excluded the evidence on the ground that there was no ambiguity in the words, and that the contract could not, therefore, be varied by parol evidence.
    At the close of the evidence the plaintiffs’ counsel asked the court to direct a verdict for the plaintiffs.-
    Defendant’s counsel asked the court to dismiss the ■complaint, on the ground that the plaintiffs had not proved a tender.
    Defendant’s counsel then asked the court that the ■case might go to the jury on the following facts :
    (1) Whether the defendant did not offer to perform the agreement on Ms part, at the time and place named in the contract; and having offered, and the plaintiffs having declined, whether the defendant was not released from the contract.
    (3) Whether the bonds that the defendant agreed for were tendered at all, and that it is a question of fact, either wholly or in part, upon the proof now before the court, and does not depend simply upon the question whether the bond signed “ W. H. Smith” alone, would be good in law-; but that there is evidence showing that the parties intended that the bonds to be delivered under the contract, were those signed by Smith as governor.
    (3) That even if the bonds called for by this written agreement might be satisfied by tendering bonds signed by Smith alone; yet, that the extension of time was given by the defendant to the plaintiffs, solely with reference to bonds signed by Smith as governor, and none others, and that it is only by virtue of that extension that the tender was made.
    (4) On the question whether Levy had any right at all to tender the bonds to any one which he did tender, inasmuch as he did not own them. The tendering of property—of another man’s property, which, before that time, and after that time, he refused to receive himself.
    (5) Also on the question whether any notice was given to the defendant of the time and place of the sale of these bonds, and therefore whether the notice given to the defendant was one that bound the defendant to the result of any sale that Mr. Levy might ■ make.
    The court directed the jury to find a verdict for the plaintiff, for two thousand two hundred and fifty-seven dollars and seventy-two cents.
    The defendant excepted to the several decisions of the court, and appealed from the judgment.

      J. H. Harrison, attorney for defendant and appellant.

      L. R. Marsh, of counsel.

      A. F. Smith, for plaintiffs and respondents.
   By the Court, Monell, Ch. J.

There being neither hour nor place specified in the contract for the delivery of the bonds, the sellers had the whole of the last day—unless the time was limited by the subsequent agreement of the parties ; and a tender of delivery at the plaintiffs’ place would have been sufficient. But the evidence shows that the parties subsequently agreed to the hour of twelve o’clock as the time, but which was afterwards extended to a quarter past two o’clock, and the office of Messerole & Trumbull as the place of deliv - ery ; and the question which is chiefly involved is the sufficiency of the tender made at the time and place so agreed upon. There are several other exceptions taken by the defendant which must fall, if the main question is decided against him. Such as his offer to explain by parol and alleged ambiguity in the contract, and his several requests to have questions of fact submitted to the jury.

If it shall be found that the bonds tendered were sufficiently ‘‘ endorsed by the State of Alabama,” then there was a fulfillment of the contract by the plaintiffs, and a failure to perform by the defendant.

There was no ambiguity in the contract.

The endorsement by a State, like the endorsement by a corporation, must be by some agent appointed by law ; and, in order to constitute such agency, the appointment and authority of the agent must be shown. In a State it need not necessarily be by the governor; any other official might be designated by the legislature ; but, under the laws of this State (1 JR. S. 164, §4, 168 ; §§ 20, 21), and probably under the laws of Alabama, it seems the instrument must be authenticated under the privy seal.

It is conceded that authority to endorse the bonds in question, in behalf of the State of Alabama, was conferred, by law, upon the governor of that State, under the privy seal. The certificate endorsed upon the bonds vefers to and recites the Acts of the general assembly of the State of Alabama, under which the bonds were issued, and then proceeds as follows :

“The State of Alabama hereby endorses this bond, and becomes liable for the payment of the principal and interest thereof; the Alabama & Chattanooga Railroad Company having complied with the conditions upon which the undersigned, governor of the State of Alabama, is required, on the part of the State, to give such endorsement.
“ In witness whereof, the undersigned, governor of the State of Alabama, has hereto set his hand, and i. s. caused to be affixed hereto, the seal of the State of Alabama, this first day of January A. D., 1869.”

The contract required, and that is all it required, that the bonds should be indorsed by the State of Alabama ; and the only question which can legitimately arise, is, were these bonds indorsed by that State. The language of the contract is not indefinite, uncertain or ambiguous. It is not capable of two significations or meanings. If the bonds tendered bore the legal indorsement of the State, there can not be a doubt that it was a compliance with the contract. That there may have been two separate and different authorizations by the State, and the parties contracted for bonds indorsed in some other manner, or under some other law, would perhaps have been ground for reforming the contract. But the proof would not, I think, be competent, as explaining any alleged ambiguity in the contract itself.

The cases to which we were referred do not so fully sustain the defendant’s, position, that they should be regarded as authorities upon us. And we think they are distinguishable.

In Freeland v. Burt (1 T. R. 701), parol proof was allowed, to show that a cellar under a yard was not intended to pass under a lease of the yard over the cellar. It was a distinct appurtenant, and at the time of the demise, occupied by another tenant. The lease did not in terms specify or include the cellar, although all other parts were plainly indicated, .but the leasee claimed under the maxim cu/jus est solum, ejus est usque et ad inferos. The court conceding the general rule, saw fit to apply a different rule of construction on leases made in populous cities, from that of those made in the-country. They say in London, different persons have several freeholds over the same spot; different parts of the same house are let out to different people; and that, considering the nature of the property, it was proper to show its state and condition at the time when the lease was granted.

Prima fade, the cellar would pass under a demise of the yard ; but the proof was allowed not to explain an ambiguity, but to get at the intentions of the parties, and the court, “ considering all the circumstances of this case,” relaxed the rule. The case, therefore, is not-a precedent.

The case of Cary v. Thompson (1 Daly, 35), was a demise of “two houses,” and parol evidence was offered of what was intended to be covered by the lease, the tenant claiming the yard as well as the buildings. This was held to be proper, but not on the ground of explaining any ambiguity, but for the purpose of ascertaining what was intended to pass by the demise.

The right to the evidence in the case before us, was not put upon the ground that the contract, in terms or by legal effect, was for other bonds than such as were specified in the contract, but on the ground that, the vendee had the right to claim bonds differently indorsed.

That would be introducing a new subject, and making a contract different from the one the parties reduced to writing; and would violate the fundamental rule, that written instruments can not be altered or varied by parol proof.

The case is therefore unlike French v. Carhart (1 N. Y. R. 96); Moore v. Meacham (10 Id. 207); Hinneman v. Rosenbach (39 Id. 98); Field v. Munson (47 Id. 221); and other cases, cited by defendant’s counsel, which were of latent ambiguities, or of words susceptible of more than one construction.

In construing the contract in question, the court did not require the aid of any extrinsic proof. The import of the language was clear and unambiguous, and its terms would be satisfied, by proof of a legal indorsement of the bonds, by the State of Alabama.

But assuming that it would have been proper to let in the evidence, and that it had been proved that the defendant contracted for indorsements signed by the governor, as governor, would the tender have been insufficient %

The addition of the office to the governor’s signature was of no consequence whatever. It was not necessary to give validity to the instrument, or to comply with the statute authorizing the indorsement of the bonds. In the body of the instrument, and in the attestation clause, his official character and position is fully mentioned and described, and to have appended to his signature, his title of office, would have been supererogative and useless.

At or shortly prior to this transaction, some doubt as to the sufficiency of the indorsement by the governor, without the appendage of his title, had arisen among brokers in Wall-street, but which subsequently was disregarded, and it was claimed, that the defendant having in his mind the existence of that doubt, intended to contract for the purchase of bonds indorsed with such appendage.

But the evidence was, that such doubt did not affect the price or value of the bonds, nor depreciate the one kind below the other.

The rights, however, of the parties, are not affected by the existence, merely, of any doubts among brokers of the sufficiency of an indorsement.

The courts, administering the law, must determine the questions which arise between individuals, and construe their contracts upon principles applicable to the ■case. And whatever law stock brokers, or the brokers’ board may make for itself, it must yield, if it is not sanctioned by the courts.

Therefore, the question in this case, is, were th bonds “indorsed by the State of Alabama ? ”

I am of opinion that they were.

From this conclusion it follows that there was a sufficient offer by the plaintiffs to perform ; and the refusal -of the defendant to accept the offer for the alleged ■defect in the indorsement, was a breach of the contract on his part.

There was no question for the jury. The actual tender was without any real dispute, except as to the character of the indorsement upon which, the refusal was put. Nor can the defendant claim anything, from the circumstance that the bonds tendered, were owned by other persons. The owners were present when the tender was made, and consented to it. Had the defendant accepted the bonds, his title to them would have been indisputable.

The sufficiency of the notice of sale of the bonds, raised no question of fact for the jury.

There was no error, therefore, in refusing the several requests of the defendant to submit the case, or any part of it, to the jury.

The judgment should be affirmed.

Curtis, •!., concurred.


author: By the Court.—Monell, Ch. J.

text:
    JAMES C. ANDERSON, Plaintiff and Appellant, v. THOMAS H. WEST, et al., Defendants and Respondents.
    Before Monell, Oh. J. and Curtis, J.

      Decided January 4, 1875.
    CONTRACT AND BREACH OF THE SAME.
    The plaintiff agreed to ship the peaches grown by him, to the defendants, during the peach season of 1868, to be sold by defendants ■on commission, at New York, they agreeing to obtain an average price per crate or box, of seven dollars:

      Held, That the shipment of peaches by the plaintiff, during the •whole of the peach season of 1868, was a condition precedent to the ■obtaining of an average price of seven dollars per crate or box.
    That the said price was to be an average made upon the sales of the entire crop or shipments during the season; and it could not be claimed that each single shipment or crate, should realize that price. That the failure of the plaintiff to ship his peaches to defendants during the whole of the peach season of 1868, was a breach of the agreement on his part, and deprived him of any right of action against the defendants, to recover any deficiency which arose by reason of the peaches of the plaintiff that were forwarded realizing ■the average price of seven dollars per box or crate.
    The court sitting in review of a judgment entered upon the report of a referee, can only look at the findings, and if they are sustained by the evidence, the judgment must be affirmed, although the findings may be inapplicable to the cause of action stated- in the complaint (Grant «. Moore, 22 N. Y. 323; Lewis ®. Ingersoll, 1 Keyes ■347; Mosher®. Hotchkiss, % Keyes, 161).
    In case the referee fails to find any facts upon the cause of action :set forth in the complaint, further and other findings should be required to be made, or he should be required to decide fully upon the causes of action set forth in the complaint, on motion at special term. The question can not be raised on appeal from the judgment, nor can the general term send the case back to be amended in that respect (Hulee ®. Sherman, 13 How. Pr.JR. 411; Heroy v. Kerr, -8 Bosw. 194; Van Slyke ®. Hyatt, 46 H. Y. 260).

      Appeal from a judgment.
    The complaint alleged that the plaintiff, then residing-in the State of Ohio, was solicited by the defendants to ship and consign to them peaches ‘‘during the then peach season” to the city of Yew York. That to induce the plaintiff to make the consignment, the defendants stated that they were well'acquainted with the Yew York peach market, and that a medium or average of the-peaches grown in plaintiff’s locality would readily bring-in the new York market, at least from six to eight dollars, per crate, and that he could rely upon, at least, the average price of seven dollars per crate, for all such peaches as he should ship and consign to them. It was thereupon agreed that a few crates should be shipped, and if favorable prices were obtained, and the plaintiff' should feel warranted in continuing the shipments, that the defendants should receive and sell the peaches-to the best advantage, for a commission.
    It was alleged that the defendants communicated with the plaintiff from time to time, that prices were goodthat his fruit was worth ten dollars, and urging him to send forward his peaches. That the plaintiff' relying upon such statements, continued shipping until about September 10, when the shipments had amounted to one thousand and eighty-three crates, all of which the defendants sold—“and as the plaintiff is informed, at. a greater average price than seven dollars per crate.” That the defendants failed to render promptly accounts of sales, and when they finally rendered them, instead of being credited therein at an average of seven dollars, per crate, the plaintiff was credited with only four dolars and forty-five cents per crate.
    The plaintiff alleged a breach of the agreement by the defendants, and claimed that there was due him on. said shipments upwards of three thousand dollars ; and that by means of the premises he had suffered loss and damage to that amount.
    The answer was a general denial, except that the peaches were merely consigned for sale, and were sold for the best price that could be obtained ; and that the defendants had fully accounted to the plaintiff.
    The action was tried before a referee.
    At the close of the evidence, the referee found the following facts:
    That the plaintiff being a peach grower and shipper, -at Carlisle, Ohio, and the defendants being produce commission merchants, in the city of New York, entered into an agreement by which the plaintiff agreed to ship peaches, to the defendants, during the peach season of 1868, to be by them sold on commission, at said city ; the defendants, in consideration thereof, agreeing to obtain an average price, per crate or box, of seven dollars.
    That such agreement was for the whole peach season of 1868.
    That under such agreement, the plaintiff commenced, on or about August 17, 1868, shipping peaches to the defendants, to be by them sold on commission, and so continued until on or about September 8, 1868, and the defendants sold the same in the city of New York, at an average of four dollars and forty-five cents per crate or box.
    That the plaintiff, being dissatisfied with the returns of sales made by the defendants, ceased forwarding his peaches some time before the peach season of 1868 was over, to wit, on September 8, 1868.
    That by this action of the plaintiff in ceasing to forward his peaches before the peach season of 1868 closed, "the defendants were prevented from performing their part of the said agreement to obtain an average of seven dollars per crate or box.
    And. he found as matter of law:—

      That the shipment of peaches by the plaintiff, during the whole peach season of 1868, was a condition precedent to the obtaining by the defendants of the said, average of seven dollars per crate or box.
    That the failure of plaintiff to perform such condition precedent on his part, deprives him of any right to action against the defendants to recover any deficiency which arose by reason of the peaches of plaintiff-not realizing the average of seven dollars per crate or box.
    That the defendants are not indebted to the plaintiff, as alleged in this action, and are entitled to judgment, against said plaintiff for their costs ; and I accordingly so order.
    The plaintiff appealed.

      P. Chase, for appellant.

      J. H. Van Duzee, for respondents.
   By the Court.—Monell, Ch. J.

I think there-was sufficient evidence to justify the finding of the referee, that the agreement between the parties was for-the whole peach season of 1868. It was so alleged, substantially, in the second paragraph of the complaint, where it is stated, that the plaintiff was solicited by the defendants to consign peaches “ during the then peach season.” That seems to have been the foundation upon which the alleged agreement was made ; and the whole tenor of the testimony is susceptible of no other-construction. Indeed, it would be difficult to determine' or ascertain an average, except from an aggregation of some kind; and the reasonable interpretation of the agreement is, that the average was to be made of the-entire crop of shipments during the season for that kind of fruit. It is not claimed that each crate should realize at least seven dollars, but that the aggregate receipts of all that was to be consigned, should make-such an average.

The plaintiff, in one of his letters given in evidence, indicated, I think, that he viewed the contract as a continuous one. And viewing it in that light, furnished a. reason for stopping the shipments, a reason probably satisfactory to himself, but not sufficient in law, to excuse performance on his part. He says, “ You say, if I had continued to send, I would have made up my losses.. To this it is sufficient to answer, that as soon as your acc’t sales were received, it was at once seen that they varied so widely from the telegrams that no reliance could be placed upon them (while they had also the effect of advancing the price here), and that to-continue shipments upon such unreliable statements-would involve greater losses than those already incurred.”

The contract having been found to be for the entire peach season, its performance by the plaintiff was correctly held by the referee to be a condition precedent to the maintenance of any action upon it; and the evidence was undisputed that the contract, as so found,, was not performed by the plaintiff.

It is evident, however, I think, that the plaintiff’s action was not upon any such contract as was found by the referee. He did not seek to recover the average of seven dollars a crate upon the strength of the defendant’s agreement that the peaches should average that, sum. His dealings with the defendants and treatment of the whole transaction, clearly indicate that he did not-rely upon the agreement, but upon the promise and further agreement that the defendants would inform the plaintiff by daily telegrams of the condition of the peach market, that the plaintiff might regulate his shipments thereby ; and that in pursuance of such promise, they did inform him that peaches were selling at prices far exceeding such average, and that, relying on such information the plaintiff continued the consignments.

It is not necessary to determine whether, upon proof of such a state of facts, the plaintiff could recover. The referee has entirely ignored and disregarded any such cause of action, and treated it as wholly an action upon the alleged contract or guaranty that the goods should average at least seven dollars per crate. And his findings of fact are appropriate to the judgment which he has rendered, and not to a different state of facts or other cause of action.

The court sitting in review, can look only to the findings, and if they are sustained by the evidence, the judgment must be affirmed, notwithstanding the findings may be inapplicable to the cause of action stated in the complaint (Grant v. Morse, 22 N. Y. 823 ; Lewis v. Ingersoll, 1 Keyes, 347; Mosher v. Hotchkiss, 3 Id. 161). In the last case, the court say, it is not competent for the court to explore the evidence to ascertain whether there are not other facts which might have been found by the referee, and if found, would have authorized a discussion of the question suggested by the exceptions taken to the conclusions of the referee.

The referee having failed to find any fact, upon what we suppose was the real cause of the action, further or other findings might have been ordered upon motion to the special term ; or, the referee might, upon a like motion, have been required to decide upon the alleged other and only cause of action. But the question cannot be raised upon appeal from the judgment; nor can the general term send the case back to be corrected in that respect (Hulce v. Sherman, 13 How. Pr. 411; Heroy v. Kerr, 8 Bosw. 194; Van Slyke v. Hyatt, 46 N. Y. 260).

The only exceptions, beside those to the admission or rejection of evidence, were at the close of the evidence, when, upon the defendant’s motion, the referee decided to dismiss the complaint; then follows .as the case slates:

“The plaintiff excepts to the rulings of the referee in dismissing the complaint; plaintiff also excepts to the report of the referee.”

These exceptions are too general (Newell v. Doty, 33 N. Y. 83); and at most, only raise the question whether upon the facts as found, the law has been properly decided (Belknap v. Sealy, 14 Id. 143-148).

There should have been specific exceptions to the conclusions of law.

I have examined the plaintiff’s exceptions during the progress of the trial, and do not find any error in the xu lings of the referee.

The judgment should be affirmed.

Curtis, J., concurred.


author: By the Court,—Monell, Ch. J.

text:
    WILLIAM P. BENSEL, and WILLIAM P. SEELEY, Executors, &c., Plaintiffs and Respondents, v. HORATIO N. GRAY, Defendant and Appellant. HORATIO N. GRAY, Plaintiff and Appellant, v. WILLIAM P. BENSEL and WILLIAM P. SEELEY, Executors, &c., Defendants and Respondents.
    LEASES.
    1. Contract for sale of.

    Where the contract contains no express covenant that the title under the leases should be good, the title of the original lessor, and the right or power of the lessee to sell and assign the same, is implied. (See cases cited in the opinion of the court.)

      Before Mouell, Oh. J., and Curtis, J.

      Decided January 4, 1875.
    3. Lease from the mayor, &c., of New Torlc, on a sale for taxes.

    The act of 1843 (Valentine’s lams, 1260), authorizes the corporation to sell for unpaid taxes “ for the lowest ten'm of years, &e," and execute to the purchaser a lease for the said term of years.
    3. Rights and duties of the parties to an executory contract, for the-sale of leases, executed by the corporation under the act of 1843.
    There being an implied covenant of warranty in the contract for the sale of these leases from the plaintiffs to the defendant, the defendant had the right to insist that a good title to the term specified in the leases should be given to him, and, therefore, if he could show upon the trial of an action for specific performance that the leases were invalid, and did not secure to the-lessees (the plaintiffs), or their assignee, the term specified, therein, such proofs would defeat the action, as he was justified in refusing to take the assignment of the leases under the contract, the performance of which was sought to be enforced.
    In the case at bar, the refusal of the judge, before whom the-action was tried, to pass upon the evidence offered by the defendant to establish that the tax title was invalid, was held to be a question of law, erroneously determined by said judge.
    Also, held, That the fact of the defendant being in possession of the leasehold premises in question, under the contract, had no-effect upon the right of the defendant to claim, under the implied covenant of the contract, that he should have a good title, nor did such possession deprive him of the right to acquire the fee to said premises, and to subrogate himself to all the rights the fee could give him, and, among others, the right to contest the tax title.
    Two appeals from judgments.
    The first entitled action was to compel the specific performance of a contract between the parties, wherein the plaintiffs agreed to sell and assign to the defendant, “ two indentures of leases made by the corporation of the city of New York of certain premises therein described.”
    The second entitled action was to cancel the agreement, and have the said leases declared void.

      The actions were tried together at special term, without a jury. '
    The judge found the facts, which were to the effect that the leases were upon a tax sale. That under the agreement, the defendant went into possession. That for more than twenty years, the lessees, and those claim - ing under them, had been in possession. A tender of an assignment of the leases ; and that there was no fraud or misrepresentation on the part of the plaintiffs.
    Upon the trial a large amount of evidence was introduced, tending, as the defendant claimed, to establish the invalidity of the tax title ; and on the settlement' of the case the judge was desired, under rule 41, to find specifically:
    1. Whether or not the leases were good and valid for the unexpired terms thereof, and ;
    2. Specifically upon the several objections to the-validity of the leases, which it was Claimed the evidence established.
    The judge refused these requests, and declined to-find upon them either way, and the defendant excepted..
    The findings of fact were substantially the same im each of the cases-; and the like requests to find the-additional facts were also made in each case, with a like-refusal and exception.
    The contract contained the following:
    “To have and to hold the same unto the said' Horatio H. Gray, his assigns, from May 1, for and. during all the rest, residue and remainder yet to come of and in the term of years mentioned in the said indenture of leases, subject, nevertheless, to the rents, covenants, conditions, and provisions therein also mentioned. And we do hereby covenant, grant, promise,, and agree, to and with the said H. if. Gray, that the said assigned premises now are free and clear of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, back-rents, taxes, assessments, and incumbrances whatsoever.”
    Judgment was rendered in the first action for the specific performance of» the contract, and in the second action, dismissing the complaint.
    The defendant in the first and plaintiff in the second action appealed.
    The appeals were heard together.

      A. Wakeman, for appellant.

      J. E. Parsons, for respondent.
   By the Court,—Monell, Ch. J.

The contract which was the foundation of these actions, was for the sale of two certain leases, made by the corporation of the city of New York, of a lot of land which had been sold for unpaid taxes ; ahd were described in the contract as bearing date, one in October, 1846, and the other in November, 1859 ; and the questions which arise upon these appeals must be determined chiefly, by the con - struction and legal effect which is to be given to the contract, and the obligations of the parties under it.

The contract contains no express covenant that the title under the leases should be good. There is a covenant that the premises were free from other grants, leases, taxes and incumbrances. But that does not relate to the validity of the title made by the leases.

But a covenant of title in the lessor may be implied.

In Burwell v. Jackson (9 N. Y. R. 535), the question is thoroughly examined, and it was there held, that in an executory contract to convéy land, there was an implied covenant that the vendor had a good title. The learned judge in that case, in reviewing the decisions says, it seems never to have been doubted that this was the rule in case of a sale of a freehold nor of a leasehold so far as the right of the vendor to the lease itself was concerned ; but that it was for a long time a disputed question in England, whether upon a sale of a mere leasehold interest, the vendor was bound to show,, not only that he owned the lease, and had authority to sell it, but that the original lessor had power to create the term This question, he says, was finally settled, by the court of exchequer in Purvis v. Rayer (9 Price, 488), where it was held, after great deliberation, that if a contract be made for the sale of leasehold property unconditionally, and without a stipulation in terms on the part of the vendor, that he meant to sell his interest only, and that he would not warrant the lessor’s title, he is bound to show the right of the original lessor to grant the lease; and he refers to Souter v. Drake (5 Barn. & Adol. 992), where the vendor in terms only agreed that he would assign the lease and deliver possession. He offered to do both ; but the court held that he must show in addition to this, that the landlord had, a good title. Oh. J. Dermar, there says, unless there be a stipulation to the contrary, there is in every contract for the sale of a lease an implied 'Undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself.

The case Burwell v. Jackson (supra), has since been recognized as the settled law of this State as respects executory contracts for the sale of lands (see Story v. Conger, 3 Trans. Ap. 213 ; Smith v. Babcock, 36 N. Y. R. 169 ; Thomas v. Barton, 48 Id. 198; Leggett v. Mutual Insurance Co. 53 Id. 398).

In all these cases it is held, that the implied covenant has force and vitality only while the contract remains executory. After the deed has been executed and delivered, the vendee must rely upon express covenants contained in the deed, as no covenants can be implied in a deed (1 R. S. 738, § 140).

There is no distinction, in fact or principle, between contracts for the sale of lands and for the sale of leases. None is made in the cases; and in England the covenant is implied as to each alike, and the rule there so firmly established is fully recognized "by the courts of this State.

It seems to me, therefore, that the defendant bad a right to refuse to take an assignment of the leases, if the lessor’s title was defective.

The character of the title acquired under a tax sale is not unlike a leasehold estate proceeding from the owner. The Act of 1843 (Valentine's Laws, 1260), authorizes the corporation to sell for unpaid taxes, “for the lowest term of years, at which any person shall offer to take the land, for the amount of the tax,” and to execute and deliver to the purchaser a lease for the term of years so offered.

The defendant had, therefore, the same right to insist that the plaintiff should show that the corporation had power to grant the lease, as in the common case of a lease from the owner for a term of years.

The question of the burthen of proof does not arise. The defendant took it upon himself in both actions, to show the invalidity of the tax title; and if he had the right to claim the benefit of the implied covenant, then the learned judge erred in refusing to pass upon the objections which the defendant raised to the title under the leases.

■ But it is claimed that the defendant, having gone into possession under the contract, is estopped from objecting to the title.

Even if the fact of possession under the title was established by the evidence, and I do not propose to question it, it would not destroy or impair the right of the defendant to insist upon having a good title. Notwithstanding the possession,- the contract remained executory / and so long as it remained executory, the implied covenant of title, or that the corporation could lawfully make the leases and create the estate, •continued (Burwell v. Jackson, supra), and whenever the vendor came to tender the conveyance or assignment, the vendee could object to the sufficiency of the title.

What other questions might arise, it is not necessary now to consider. But it seems to me clear that the mere possession of the leasehold premises, even though it was under the contract of purchase, had no effect upon the right of the defendant to claim under the implied covenant .that he should have a good title.

Nor do I think the position of the defendant is affected by the finding of fact that he, with intent to deprive the plaintiffs permanently of the possession of the premises, procured from the owner, for a valuable consideration, a conveyance thereof, and retaining possession, refused to carry out the agreement with the plaintiffs.

It is not necessary, at this time, to examine into the motives of the defendant, in looking up and taking from the owner, a conveyance of the land. It may be proper to do so, when some other rights of the parties may be under examination. But that he had a legal right to, and did, under the conveyance, acquire the title of the owner, can not be disputed. And that title was in fee, but subject to be defeated by establishing the regularity and sufficiency of the tax sale. It has been decided that possession under such a sale is not such an adverse possession as will prevent the owner from conveying his interest (Hoyt v. Dillon 19 Barb. 644). And the general rule is, that there must be a claim of the whole title (Towle v. Palmer, 1 Abb. Pr. N. S., 81; Wilklow v. Lane, 37 Barb. 244).

Therefore, the defendant, had he not been in possession, could have maintained an action to recover the possession, and would have been entitled to recover, if he could show that the title under the tax sale was invalid. His being in possession, even though it'was under the contract, did not deprive the defendant of the-right to acquire the fee, and to subrogate himself to all the rights the fee could give him, and among them, the-right to dispute the tax title.

My conclusion is, that under the implied covenant of warranty, the defendant had the right to insist that a good title to the term specified in the leases should be given to him ; and, therefore, if he could show that the-leases were invalid, and did not secure to the lessees the term specified, he was justified in refusing to take-the assignment.

We are not called upon, at this time, to look at the evidence offered by the defendant. The refusal of the judge to pass upon such evidence, raises a question of' law, which we must determine, without regard to the sufficiency of the evidence to establish the fact as the defendant desired it to be found. And we must assume that the learned judge refused to pass upon the evidence, on the ground that, in his judgment, it was-immaterial, and established no defense ; and not for the-reason that it did not show the tax title to be invalid.

The judgments in each of the actions should be-reversed, and new trials had, with costs to the appellant to abide the event.

Curtis, J.,. concurred.


text:
    JAMES DOUGHERTY, Plaintiff and Appellant, v. ELIZABETH S. VALLOTON, Admrx. &c., Defendant and Appellant.
    Before Monell, CL. J., and Curtis, J.

      Decided January 4, 1875.
    REFEREE.
    His power to allow amendments, like that of a judge at the trial, is. restricted to such amendments as do not change substantially the claim or defense (Code, § 173), and the exercise of this power (whether he allows an amendment, and conforms the pleading to the facts proved, under this section (§ 173,) or refuses so to do), is so far within his- discretion, that although it may be reviewed on appeal, the court of review will not disturb the decision, unless the power has manifestly been unwisely exercised.
    This power to amend and conform the pleadings to the proofs, is not confined to the court at the trial, nor at special term. It may be exercised by the court at general term, or the court of appeals (Pratt ®. Hudson R. R. R. Co., 31 N. Y. 305).
    In the case at bar, it having been conceded that the cause of action set forth in the complaint, was not sustained by the proofs, it was held that there was no error in dismissing the complaint on the ground of an entire failure of proof. Nor was there error in refusing to amend and conform the pleadings to the proofs, as that could not be done without changing the claim or cause of' action alleged in the complaint.
    Appeal from a judgment.
    One Shields, the defendant’s intestate, bought the interest of his co-partner Brown in the property and effects of the firm of Brown & Shields, and agreed to pay Brown therefor three hundred and fifty dollars in cash, and the notes of the plaintiff for one thousand seven hundred and fifty dollars. There was an understanding "between Shields and Brown, that Shields should transfer to the plaintiff a half interest in such property as a ■consideration for such notes. The notes were delivered by the plaintiff to ■ Shields, who turned them over to Brown in payment of the half interest transferred by Brown to Shields. There was no other consideration for the notes, than the understanding that Shields was to transfer said half interest to the plaintiff. Shields never transferred such interest to the plaintiff, .and the notes were, therefore, without consideration as between Shields and the plaintiff.
    The plaintiff, by the suggestion and co-operation of Shields, brought an action against Brown to enjoin him from disposing of the notes, upon the discontinuance of which it was agreed that Brown should deposit the notes with one Moses, until the payment by' Shields of all the firm debts, and should be then restored to the plaintiff. Shields failed to pay the debts, and the notes were released by Moses, and the plaintiff was sued thereon in the State of New Jersey, where the plaintiff succeeded in defeating a recovery. He afterwards brought another suit to enjoin the suit upon the notes.
    In prosecuting the several actions, and defending "the suit upon the notes, the plaintiff incurred legal expenses amounting to one thousand four hundred dollars, to recover which the action was brought.
    It was alleged in the complaint, that the plaintiff had been induced to give the notes through fraudulent representations made by Brown and Shields, but the referee found that no evidence had been given of the fraud or fraudulent representations alleged in the complaint, or of any of them, and that the plaintiff had-failed to establish the cause of action alleged in the complaint, or any cause of action. And he rendered judgment, dismissing the complaint.
    The plaintiff appealed.

      A. P. Whitehead, for appellant.

      W. F. Shephard, for respondent.
   By the Court.—Monell, Ch. J.

It is conceded "that the allegations of fraud in the complaint were not sustained by the proof, and as that was the only cause of action alleged, there was no error in dismissing the complaint, on the ground of an entire failure of proof.

But it is claimed that another cause of action against the defendant was established by the evidence, and that the referee erred in not conforming the pleadings to the proofs, and rendering judgment upon such evidence, in the plaintiff’s favor.

The power of a referee, like the power of a judge at the trial, to allow amendments, is restricted to such as do not change substantially the claim or defense {Code, § 173); and the exercise of the power is so far within the discretion of the judge or referee, that, although it maybe revie'wed on appeal, the court of review will not disturb the decision, whether it allows or disallows the amendment, unless the power has manifestly been unwisely exercised.

But the power to amend by conforming the pleadings to the proofs, is not confined to the trial, nor to the court at special term. The general term, upon an appeal from the judgment, and even the court of appeals, when it is in furtherance of justice, can allow an amendment (Pratt v. Hudson R. R. R. Co., 21 N. Y. R. 305).

The cause of action, which I understand the plaintiff claims has been made out by the evidence, is, that having lent his promissory notes to Shields, receiving no consideration therefor from Shields, or from any one ; and having been subjected to expenses in prosecuting and defending suits upon them, he has the right to recover such expenses as damages against the representative of Shields. A recovery is not asked, for any failure of Shields to transfer to the plaintiff a half interest in the property of Shields & Brown, nor for having to pay the notes, or any part of them ; but the-claim arises upon the mere relation of an accommodation maker, to the person accommodated, to recover as damages his expenses in litigations concerning the notes.

The notes were turned out by Shields to Brown, upon and towards payment for a half interest in the partnership property. Such transfer constituted Brown. a bona fide holder, and notice to him, that they were accommodation notes, did not affect his right to recover against the maker. Such is the law of this State (Harrington v. Dorr, 1 Robt. 351). And such a note may be taken for an antecedent debt (Robins v. Richardson, 2 Bosw. 248). Or even as security for a precedent debt (Schepp v. Carpenter, 51 N. Y. R. 602).

It seems that in,the Hew Jersey courts, the plaintiff defeated a recovery upon the notes, but upon what ground does not appear. Whether they held that the holder, having had notice of the want of consideration, was not a bona fide holder, or whether they found that the note was made for a purpose not fulfilled, was not shown. It did appear, however, that the plaintiff was. successful in his defense.

But under the law as administered in this State—and it is under such law that we must determine the rights of the parties—it was the duty of the plaintiff to pay the notes to the holder at maturity» ' Had he paid them, an action for money paid could have been maintained against Shields, and a recovery had for the amount paid, with interest. In this State he could not. have successfully defended a suit upon the notes, and had he suffered suit, he could not have recovered the-costs and expenses of defending.

I can not discover any difference in principle, in his defending in New Jersey. That he succeeded in the courts of that State, may have been to the advantage of Shields, in saving him from the consequences of a voluntary payment by the plaintiff. But Shields neither instigated nor was privy to the defense interposed ; nor did he counsel or suggest any course for the plaintiff to pursue. And if the plaintiff, for his own protection, and in his own defense, saw fit to litigate in the New Jersey courts, or pay or incur large expenses, I do not see upon what principle he can call "upon the defendant to make good the loss.

It is very clear, I think, that if the plaintiff had been unsuccessful in his New Jersey litigation; his law ■expenses could not have been charged upon Shields. He was unsuccessful in the action or actions he instituted to enjoin the negotiation of the notes, and he can not claim any indemnity therefor, or for his •expenses therein, from Shields’ estate.

It is not enough that these legal expenses were connected with the accommodation paper. They must have been necessarily incurred in consequence of such paper, and by reason of the plaintiff’s liability upon it. In this case they were not so necessarily incurred. The plaintiff could have paid the notes without suit, •and then recovered the amount from Shields. And if, instead of pursuing that course, he deemed it more for his interests and protection, to engage in expensive litigation in another State, it must be assumed that he did it for his own purposes, and not for any benefit which might indirectly accrue to Shields.

Upon payment by the maker of an accommodation note, his action must be for money paid, laid out and expended for the defendant, and the law in such a case would imply a request by the defendant, and also a promise to pay, and the measure of the recovery would be the amount so paid at the request of the ■defendant; not what the plaintiff had actually paid "beyond the implied request. Hence, if instead of paying the note at maturity, he suffers suit, he can not, in such an action, recover the costs or legal expenses (9 Barn. & Cress. 618).

In Butler v. Wright, 2 Wend. 369, the action was by a second against a first indorser of a note. The plaintiff had been sued by the holder, and a judgment recovered which he had paid, and the action was upon the money counts for money paid, &c., and the court-held, that as it was the duty of the defendant to pay the note, he could not object to a recovery by the plaintiff of the amount he had been subjected to, by the defendant’s default. That case illustrates the position, of the plaintiff in this action. His duty to the holder of the note, was to pay it, and then sue Shields for so much money paid for him. Whatever else or otherwise he did, must be regarded as his voluntary act, for which there was neither an express nor implied request of Shields, and for which the latter’s estate should not be held liable.

The action, therefore, as an action for money paid for the defendant’s intestate, can not be maintained.

Nor can I, for the r.easons already stated, perceive-how any action whatever can, upon the facts disclosed,, be sustained.

I have examined the exception to exclusion of some-evidence, but in my general view of the case the evidence was immaterial.

I think the referee was right in dismissing the-complaint.

The judgment should be affirmed.

Curtís, J., concurred.


text:
    MICHAEL MAHONY, Plaintiff and Respondent, v. ROBERT O’CALLAGHAN, Defendant and Appellant
    Before Monell, Ch. J., and Curtis, J.

      Decided January 4, 1875.
    WAGER.—Action to recover against the stakeholdeb eor the. MONEY DEPOSITED WITH HIM.
    Under the statute, the action lies against the Stakeholder, whether he has paid over the money or otherwise.
    It is well settled that if the money has been paid over to the ■ winning party by the stakeholder, with the authority and consent of the depositor, yet it may be recovered in an action by the latter from the stakeholder (Ruckman ®. Pitcher, 1 N. T. R. 392; Same • case, 20 Id. 1; Storey ®. Brennan, 15 2f. T. 524).
    In the case at bar, the court submitted the case to the jury, who found a verdict for the plaintiff. If there was error in this submission, it was error against the plaintiff, who was entitled under the facts proved to an absolute direction of the court to the jury for a verdict in his favor. There being no error that was prejudicial to the defendant, the verdict and judgment is sustained.
    Appeal from a judgment.
    The action was to recover a sum of money deposited, by the plaintiff with the defendant, as stakeholder, being the amount of a wager between the plaintiff and one McGinness, upon the result of a horse race.
    One of the defenses was, that before the commencement of the action, the defendant, with the assent, and by the direction of the plaintiff, paid the amount of the wager to McGinness.
    It appeared from the evidence, that after the race a dispute arose as to whether the horse which won was. the horse upon or against which the bet was made, and the plaintiff told the defendant not to give up the money until McGrinness satisfied him on that subject.
    Upon the part of the defense, the defendant testified that after the race, the plaintiff said he was willing the money should be paid to McGinness, if he, McGrinness, made an affidavit as to the horse, and if he made an affidavit, to pay him the money. It was to be an'affidavit that it was the right horse that ran. He further testified, that “ McGrinness did furnish me with such affidavits ; they were brought to me before I paid the money; I would not pay until I got them ; I showed them to the plaintiff; I had not then paid the money.” Upon his cross-examination, he said that he paid the money to McGrinness, on the affidavit.
    Plaintiff’s counsel here asked the witness for the affidavits. Witness produced them, and they were submitted to the court, by both parties, to be read by the court.
    The case does not show that the affidavits were read in evidence, or offered in evidence, or what disposition was made of them by the court. But the witness frequently alluded to the affidavits.
    At the close of the evidence, the plaintiff moved for a verdict, which was refused “on the ground that the testimony in respect to the affidavit, raised some issue of fact.’ ’
    The court submitted to the jury the question, whether the money had been paid over by the authority or direction of the plaintiff.
    The court in charging the jury, said, that the defendant claimed he had the right to pay over the money, in case a certain affidavit was made, and it would justify the defendant, if that affidavit came up to the purpose which he claimed for it. “ If it does, it will then show that he has paid the money over properly ; if it does not, whether he has paid it or not, is of no account.”
    The court further charged “that to justify the defense in paying the money over, they must show that the affidavit was such an affidavit as the plaintiff says if he would make, he might pay it. Now, the affidavit refers to a statement. There is no statement in it about this horse ; there.is no identification about it; I think there is some doubt about it, but my impression is rather against the plaintiff’s counsel. One of the witnesses says that the affidavit was shown to Mr. Loonie. I am inclined to think that is so. Our duty is to stick as closely as we can to the truth. Assume that Mr. Loonie saw it, yet unless that affidavit was such an affidavit as comes up to what they promised to do, why then, whether he paid the money over on his own account or not, if he did, it is his own wrong. That is the importance that is to be attached to the affidavit. ■
    “ The affidavit is too vague and uncertain to pay money on. It is too vague and uncertain. I am speaking of the affidavit, for I leave to you the conclusion of whether the money was properly paid, but the point of the affidavit is, that it is authority to justify the payment or not; if it does not justify the payment, then they had no right to make it.”
    The defendant’s counsel excepted to the comments of the court upon the affidavit, and requested that the affidavit go to the jury, which the court refused, and the defendant excepted.
    The defendant also excepted to the court’s charging the jury as to the contents of the affidavit, “for the reason that it has not been put in evidence.”
    The plaintiff bad a verdict, and upon judgment being entered, the defendant appealed.

      J. H. V. Arnold, for appellant.

      E. D. McCarthy, for respondent.
   By the Court.—Monell, Ch. J.

The bill of exceptions in this case is so loosely made up, that it is difficult to determine whether the affidavit commented on by the court, was or was not in evidence. It does not seem to have been read or offered; nor does it. appear what ruling was made upon it, when it was handed to the court “ to be read by the court.” Yet it was frequently alluded to by the witnesses, and by the court; and was the subject of pointed comment and criticism. If it was not in evidence, then all reference or' allusion to it, by witnesses, court or counsel, was improper ; and the learned judge erred in submitting any question arising upon it, to the jury (Fay v. Grimstead, 10 Barb. 321). It seems to have been conceded, that if the money had been paid over by the defendant, with the authority and consent of the plaintiff, it would be a defense to the action. Hence, the question of authority and consent was left upon the evidence to the jury.

A condition, upon the performance of which this, question could only be determined, was, that an affidavit should be furnished the stakeholder, that the right horse had run ; and the jury were instructed that if such an affidavit was furnished, the defendant was justified in paying over the money. The ^sufficiency, therefore, of the affidavit for the purpose it was intended for, became a material question ; and whether it was a question of law or fact, it could not be determined by either court or jury, without the production of the paper. If, as a matter of law, it was held to be insufficient, then it was not in evidence, and the court had no right to refer to it, or to submit any question arising upon it, to the jury. It is quite evident, I think, that the jury adopted the Views of the court, as to the character of the paper; and following those views, determined that it did not justify the defendant in paying over the money.

As presented to us by the printed case, the submis sion of any question upon the affidavit was probably error. It had not been read to the jury, and was not before them for any purpose. They, therefore, could not determine any question which it might be claimed arose upon it. Instead, therefore, of submitting any question to the jury, the court ought to have directed a verdict for the plaintiff.

How, then, has the defendant been prejudiced % A verdict in his favor would have been set aside, as having no evidence to support it. The affidavit which was to justify the payment, was not before the jury, and is not in the case. So that the submission of the question to the jury was of no consequence, as the result would necessarily have been the same. But, in any view, the sufficiency of the affidavit, as a performance of the condition authorizing the payment of the money, was not involved as furnishing a defense. At most, it was evidence that the money had been paid over by the authority, and with the consent, of the plaintiff. That would not be a defense to the action. Under the statute, the action lies against the stakeholder, whether he has paid over the money or otherwise ; and it is well settled, that even if paid with the authority and consent, of the depositor, it may be recovered from the stakeholder (Ruckman v. Pitcher, 1 N. Y. 392 ; Same case, 20 Id. 1; Storey v. Brennan, 15 Id. 524).

Under this view of the law, there was no error committed at the trial that was prejudicial to the defense.. There was no defense. The answer set up none, and none was proven, or attempted to be proven, at the-trial. And even if there was error in the submission of the case to the jury, it was error against the plaintiff, who was entitled to an absolute direction of the verdict.

I think the judgment should be affirmed.

Curtis, J., concurred.


text:
    ANDREW J. THOMAS, Plaintiff and Respondent, v. THE LOANERS’ BANK OF THE CITY OF NEW YORK.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 4, 1875.
    PRACTICE—STRIKING OUT A REPLY.
    In an action to recover damages for the conversion of personal property, the defendant set up in the answer, as. a counterclaim, a cause of action arising upon contract, without sufficient allegations to show that it arose out of the same transactions set forth in the complaint.

      Held, that a reply to such an answer should not be stricken out, although on demurrer to the answer, or on motion of the plaintiff to make the answer more definite and certain, the court could have determined as to its sufficiency, and whether a reply was necessary. Yet if the plaintiff left the answer on the record in form and substance, and has taken issue upon it by his reply, he has made it a material issue, and the reply can not be stricken out. Upon demurrer, the court may look at the sufficiency of a preceding pleading, but it is not so on a motion to strike out a pleading.
    A counter-claim is not a defense to an action. Issue must be taken to it by demurrer or reply, or the defendant may move for judgment.
    The Code is not subject to the narrow construction, that new matter set up in a reply, may not be inconsistent with the complaint, in cases where the counter-claim set up in the answer, is in no way connected with the cause of action set forth in the complaint.
    If the counter-claim arose out of the same transaction, then, doubtless, the matter in avoidence in the reply must not be inconsistent with the complaint.
    While*' a defendant is allowed, by way of cross-action, to allege a separate cause of action against the plaintiff, and may move for judgment, if not replied to, the latter should be allowed to confess and avoid by a reply.

      Appeal from an order.
    The motion below was to strike out a reply.
    The complaint alleged :
    “That on and prior to June 20, 1874, the plaintiff was the lawful owner, and entitled to the immediate possession of two single-stone diamond ear-rings, and one single-stone diamond ring, of the value of three thousand five hundred dollars; that the defendant became possessed of said diamonds, and being so in possession thereof, refused to deliver them to the plaintiff on demand duly made therefor, and then and there, before the commencement of this action, the said defendant wrongfully and unlawfully converted the same to its own use, to the damage of the plaintiff.”
    The defendant, after alleging that the diamonds had been pledged by the plaintiff to the defendant, upon a loan of money; the non-payment of the loan, and a sale of the pledge, &c., for a further and separate answer and counter-claim, alleged:
    “ That upon August 18,1873, the defendant lent and advanced to the plaintiff the sum of eighteen hundred dollars, which the said plaintiff promised to pay to the defendant in thirty days thereafter, with interest thereon, and then and there deposited with the plaintiff two single-stone diamond ear-rings, and one single-stone diamond ring, of the value of two thousand dollars, as pledges for the payment of the said loan.”
    “That no part of said loan has been paid, and there is now due to the defendant, by the plaintiff, upon said-loan, the sum of two thousand dollars, which said sum the defendant demands shall be recouped and deducted from the plaintiff’s claim in this action.”
    To the counter-claim, the plaintiff- replied as follows : “ That the loan therein mentioned was made by the defendant to the plaintiff, on the corrupt and unlawful agreement between them that the plaintiff would pay, and the defendant should receive, for the use of said sum of one thousand eight hundred dollars, for thirty days, two dollars for each and every hundred dollars so loaned, which sum was a greater rate of interest than seven dollars upon one hundred dollars, for one year, to wit, at the rate of twenty-four dollars upon one hundred dollars for one year ; that, in pursuance of said agreement, the said defendant demanded, and the said plaintiff paid to said defendant the sum of thirty-six dollars for the use and forbearance of said loan of one thousand eight hundred dollars, for thirty days, whereby the said loan and the said agreement became, and were, and are usurious and void.”
    The motion to strike out the reply was denied, and the defendant appealed.

      R. Sewell, for appellant.
    J. Flynn, for respondent.
   By the Court.—Monell, Ch. J.

Under the Code, the answer of the defendant may contain a statement of any new matter constituting a defense or counter■claim. If a counter-claim, it mast arise out of the transaction set forth in the complaint, when the action is not upon contract.

This action is not upon contract, and the counterclaim set up in the answer, is of a cause of action arising upon contract ;• so that without sufficient allegations that it arose out of the transactions set forth in the complaint, the matter alleged would not be the subject of counter-claim. There is no such allegation. The subject, as stated, is entirely independent of the plaintiff’s cause of action—has no relation whatever with it, and is a separate cause of action growing out of a contract. But the sufficiency of that pleading can not be examined by us upon this appeal, nor ■could it be by the court below. Upon demurrer, the •court- may look at the preceding pleading. It is not so upon a motion to strike out. hi or are we to ■assume, for the purpose of sustaining it as a counterclaim, that it necessarily is related to, tor connected with, the matter stated in the complaint. The pleader has not so stated it, and it stands upon the record as a separate cause of action (Brown v. Buckingham, 11 Abb. Pr. 387). We might, it is true, in passing upon its sufficiency, assume that it must necessarily have arisen out of the transaction set forth in the •complaint, as otherwise it could not be alleged as a counter-claim; but the question is not before us, and we must, for the purposes of this appeal, regard it as coming within the provision of the Code; as having-been properly and sufficiently pleaded; and, if sustained by proof, as entitling the defendant to judgment in its favor.

The only question, therefore, is, can or should the reply be stricken out %

A counter-claim is not a defense to an action. A defendant may admit the whole of the plaintiff’s cause of action, and set up a new and separate cause of action against the plaintiff; and may obtain affirmative relief, wholly without reference to any claim of the plaintiff against him. Hence, the Code distinguishes it from a defense to the action, and allows it as a mode of settling several controversies in'one action; and because it is Tiew and independent of the plaintiff’s case, issue must be taken upon it by a reply ; and if not replied to, the defendant may move for judgment. A counter-claim not being a defense, a reply to it can not be demurred to, although it may contain new matter. The demurrer being expressly confined to replies to defenses (Code, § 155 ; White v. Joy, 13 N. Y. 89).

The ground upon which the motion was urged, was, that the reply was a “ departure” from the complaint, and should, therefore, be stricken out. The reply-authorized by the Code, allows any new matter to be-all eged not inconsistént with the complaint, and it. is claimed, that as the complaint is in tort, the reply sets up, as an avoidance of the counter-claim, matter-arising upon contract.

The difficulty with this whole question is in the-manner the counter-claim is alleged in the answer. If the pleader had connected it with the diamonds, which the plaintiff avers have been wrongfully converted by the defendants, then, probably no reply would have been necessary. For if the loan was made-upon the same diamonds mentioned in the complaint, it, in connection with the contract of pledge previously set up in the answer, would be a defense to the plaintiff’s action, and not a counter-claim. But there is no such identity between the subject of the complaint and the counter-claim ; and the latter stands out as a separate cause of action, upon which, if not replied to, the defendant may move for judgment.

Had the plaintiff demurred to the counter-claim,, or moved to make it more definite, the court could have determined as to its sufficiency, and whether a reply was necessary ; but having left it upon the record in its form and substance, and taken issue upon it by his reply, he has made it, I think, a material issue (Livingston v. Miller, 8 N. Y. 289).

I cannot give to the Code so narrow a construction as that the new matter set up in a reply may not be inconsistent with the complaint, in cases where the counter-claim is in no way connected with the plaintiff’ s case. If the matter constituting the counter-claim, arose out of the same transaction stated in the complaint, then, doubtless, within the terms of the Code, the matter in avoidance may not be inconsistent. But while a defendant is allowed, by way of cross-action, to allege a separate cause of action against the plaintiff, and may move for judgment if not replied to, the-latter should be allowed to confess and avoid.

The order should be affirmed, with costs.

Curtis, J., concurred.


author: By the Court.—Curtis, J.

text:
    DANIEL B. CHILDS, as Assignee of MICHAEL CONNOR, Plaintiff and Respondent, v. BRIDGET CONNOR, et al., Defendants and Appellants.
    STATUTE OF FRAUDS. Vacation of conveyance which is. FRAUDULENT AS AGAINST CREDITORS OR PURCHASERS. PROOFS REQUISITE.
    No conveyance is to be adjudged fraudulent as against creditors, solely on the ground that it was not founded on a valuable consideration (2 Rev. Stat. 137, § 4).
    In the case at bar, the question is one of fact, and if the circumstances and facts establish that the conveyance was a reasonable and proper provision for the wife ; and that her property had been employed in the purchase of the premises, and that in equity she was the creditor of her husband, in regard to the means employed to purchase the lot, and that the transaction as between the parties to the conveyance, was simply just and equitable, as a settlement for the wife, the conveyance can not be invalidated by the subsequent inability of the husband to pay a debt existing at the time of the conveyance (Babcock v. Eckler, 24 N. Y. 623; Baldwin a. Ryan, 3 N. Y. Sup. Ot. 251).
    The evidence does not disclose any motive to induce the-defendant Michael Oonnor, to seek to defraud creditors by the transfer of the premises to his wife Bridget Oonnor, and there is an absence of proof that Michael Connor was insolvent or unable to pay all his debts at the time of the conveyance by him.

      Held, That the conveyance should not be vacated.,

      Before Monell, Oh. J., and Curtis, J.

      Decided January 4, 1875.
    Appeal from a judgment setting aside conveyances from Michael Connor, to the defendant Sweetman, and also a conveyance by Sweetman to Bridget Connor, the wife of Michael Connor, of certain premises in the city of Bew York, and also an appeal from an order granting the plaintiff an allowance.
    A. P. Hinman, attorney for appellants.

      H. S. Bennett, of counsel.

      King & Meyer, attorneys for respondent.

      Charles Meyer, of counsel.
   By the Court.—Curtis, J.

The conveyances m controversy were executed on April 28, 1870. The court found that the defendant Michael Connor was at that time indebted to one John Post, and one David Carpenter, and that one Gfibbens preferred a claim against him in tort, for two thousand five hundred dollars, and that by reason of the conveyance, Connor became unable to pay his debts in full, and was rendered insolvent. Subsequently, the court found at the request of the defendants, that the only creditor who held an unsatisfied claim against Michael Connor at the time of the conveyance, April 28, 1870, was John Post.

This subsequent finding accords with the evidence. The claim for the tort had been compromised for one hundred and fifty dollars, and arrangements made for its extinction, in weekly payments, by which it was subsequently, mostly, if not entirely paid, and found by the court to be paid. The indebtedness to Post, •appears to be made up of a note of Michael Connor’s for one hundred and fifty dollars, which Post bought of ■one Carpenter, and the balance of an account between Post and Connor, made up to October 9, 1871, and •extending from May 11, 1869, amounting to three hundred and nine dollars and fifty-four cents, as •claimed by the plaintiff. The testimony is obscure in reference to the note for one hundred and fifty dollars, .given by Connor to Carpenter, and it does not appear •to have been in existence until after the conveyances were executed. Post sold Connor, who was a blacksmith, at frequent intervals, bundles of iron on credit, receiving sums from time to time in payment. In this way he sold to Connor, up to the time of the making of the conveyances, iron amounting to five hundred and thirty dollars, and subsequently, up to October 9,1871, when he ceased to credit him, additional iron amounting to four hundred and one dollars. From the figures given in the evidence, there appears to have been at the time of the conveyance by Connor, April 28, 1870, a balance due Post of one hundred and forty dollars, or thereabouts, and between that time and October 9, 1871, Connor paid the plaintiff three hundred and •seventy-five dollars and fifty-four cents, including fifty-five dollars and fifty-four cents, in old shoes. The evidence fails to show that this balance of one hundred and forty dollars due to Post at the time of the conveyance, was not extinguished by the amounts shortly after paid * by Connor to Post, and in all amounting to three hundred and seventy-five dollars and fifty-four cents.

It would thus appear, that if there was any indebtedness to Post when Connor conveyed the lot, it was very trivial, and the question arises whether this con■veyance was made with the intent to defraud creditors, and should be set aside. The evidence shows that the •defendants Connor and his wife were very ignorant but industrious people. He working at his trade and doing a good business, and she keeping boarders and making dresses, and by their joint savings buying the lot in question. The deed was taken in his name, though the money which was applied towards paying for it, was, in part, her property. She became discontented with this arrangement, and when the action was brought or threatened, for the tort, claiming heavy damages, the conveyances in controversy were executed transferring the property to her.

If he was at this time solvent, and this was done as she claims, as an act of justice to her, and to provide for her and her children, it presents a case deserving of consideration. It is in evidence, and uncontradicted, that at this time Connor’s business was prosperous, and that he had other property and two horses worth nine hundred and fifty dollars, or which he subsequently sold for that sum. He had compromised the claim for the tort, and owed, if any sum whatever, not to exceed five hundred dollars, and the evidence fails to show that he had any adequate motive for attempting to commit a. fraud. It is in evidence, that about two years after the-transfer of the lot, Connor fell sick, and competition set in, and his business ran down. His wife has ever' since been in possession of the lot, and paid the interest upon the mortgage upon it.

By the revised statutes, it is declared that no conveyance or charge shall be adjudged fraudulent as against creditors or purchasers, solely on the ground that it was not founded on a valuable consideration (2 Rev. Stat. 137, § 4). The question is one of fact, and if the circumstances show that the conveyance was a reasonable and proper provision for the wife, and that her property had. been employed in the purchase of the lot, and that in equity she was the creditor of her husband, and that in the condition of the husband’s estate at the time, there-was nothing more in the transaction than what was just and fair as a settlement for her, the conveyance can not be invalidated by his subsequent inability to pay a debt., then existing (Babcock v. Eckler, 24 N. Y. 623 ; Baldwin v. Ryan, 3 N. Y. Supreme Ct. R. 251).

Upon a careful consideration of the evidence, there appears to be no motive disclosed to induce the defendant Connor to seek to defraud creditors by this transfer. There is an entire failure of proof that he was insolvent or unable to pay all his debts, which, if any, were insignificant in amount at the time. The conveyance to the wife was a proper provision for her; and in view of the fact that she had contributed towards the original purchase, and had always claimed that the lot should be held as a provision for her and her children, it was no more than a reasonable, and just, and prudent act on the part of the husband.

In this view of the case, it becomes unnecessary to consider the question raised by the appeal from the order granting the allowance of one hundred and fifty dollars to the plaintiff, but it is difficult to see how, in any contingency, more than five per cent, could be granted upon the amount of plaintiff’s judgment for six hundred and twenty-seven dollars and ninety-three cents against the defendant, the payment of which he seeks to recover from the property in question. The substitution of Daniel B. Childs, assignee in bankruptcy of Michael Connor, as plaintiff, on May 28, 1874, can not enlarge the amount of the claim or subject-matter involved.

The judgment should be reversed, and a new trial .granted, with costs to appellant to abide the event.

Monell, Ch. J.. concurred.


text:
    CHARLES D. KEEP, Plaintiff and Respondent, v. ABRAHAM KAUFFMAN, Defendant and Appellant.
    Before Monell, Ch. J., and Curtis, J.

      Decided January 4, 1875.
    ACTION TO RECOVER POSSESSION OF PERSONAL PROPERTY AND DAMAGES FOR DETENTION.
    The measure of the plaintiff’s damages is the interest on the value-of the property while in the defendant’s possession, unless the proofs show that the use of the property was of greater value than such interest, during the time the plaintiff was deprived of the-same, or that the value of the property depreciated during that time.
    There must be some evidence in the case from which it appears-that the real damages for the detention were beyond the mere interest on the value, else the usual rule will prevail, that the measure of damages is the interest, &c.
    In the case at bar, the verdict was set aside for excessive damages, there being no evidence to take the case out of the general rule, &c.
    Appeal from judgment, and order denying motion for a new trial.

      Lewis Sanders, Esq., for appellant.

      J. Worden Gedney, Esq., for respondent.
   By the Court.—Curtis, J.

The objections on. the part of the appellant, that there was no proof of a. demand and refusal of the goods detained, before the-commencement of the action, and that there was an. unconditional offer to return the goods previously, are-not tenable. The evidence shows a substantial demand. for the property, and a refusal, and the possession of the defendant appears to have been tortious. The proposition of the defendant, that if the plaintiff gave him. some directions to open by a locksmith, in the presence of two witnesses, the premises from which he had. excluded the plaintiff, and to have plaintiff’s goods, packed and sent to him, is not such an unconditional offer to return the property, and of restoration to the-plaintiff, as the law contemplates to create a bar to this action.

But whether the verdict should not be set aside for excessiveness of damages, presents a more serious question. There does not appear to be any evidence at the-trial, showing that the use of this furniture was of value during the period the plaintiff was deprived of it, or that it depreciated during that interval. Those were elements, which the jury might have taken into consideration in assessing the damages for the detention, if there had been any proof of them (Allen v. Fox, 51 N. Y. R. 562: N. Y. G. & I. Co. v. Flynn, 55 N. Y. R. 653). Nothing is disclosed to take the case out of the usual rule, that the measure of the plaintiff’s damages is the interest on the value of the property while in the defendant’s possession. This would reduce the present verdict of two hundred dollars damages for the detention of the goods, to the interest on seven hundred and fifty dollars, for two weeks—two dollars and nineteen cents. The verdict should be set aside for excessiveness of damages, and. a new trial granted on payment of costs of the trial, unless the plaintiff stipulates in twenty days to reduce the verdict to two dollars and nineteen cents, the-amount of the interest as above stated, in which event this motion is denied, with costs, to abide the event of the action.

Monell, Ch. J., concurred.