Ford v. David — 14 N.Y. Super. Ct. 569

Majority

p. 569

Ford v. David et al.

Headnote

When some of the defendants demur to the complaint, and the demurrer is overruled, “ with liberty to answer in twenty days, on payment of costs," and such decision, on an appeal to the Q-eneral Term, is affirmed, such defendants must tender an answer within twenty days after such affirmance, although the costs of the demurrer have not been taxed, or the right to answer is gone. A decision, subsequently made on the trial of the action, denying a motion then made for leave to answer, is not the subject of an exception which can be reviewed on an appeal from the judgment.

p. 570

On a trial of the issues of fact between the plaintiff and the other defendants, the plaintiff may, and should, also apply for the relief to which he is entitled, as against the defendants so demurring.

A decision at the trial, denying a motion for leave to amend an answer, served some two years prior thereto, is, in the most favorable view that can be taken for a defendant, a decision within the discretion of the Court, and is not the subject of an exception.

Although a defendant may be entitled, equitably, to an allowance, on the trial, for services rendered and materials furnished to the plaintiff after suit brought, yet, if on the trial an inquiry into them, subsequent to suit brought, is excluded by the Court on the defendant’s motion and objection, such defendant cannot object, on appeal from the judgment, that he was not allowed for such matters furnished subsequent to suit brought.

A defendant who has demurred to the complaint, and whose demurrer has been overruled, cannot, on an assessment of damages, be permitted to prove matters in their nature giving a right to reduce the amount of the plaintiff's claim, and as such constituting a partial defence. To give a right to prove, and be allowed the benefit of them, they must be set up by answer, as a defence.

When a plaintiff, under a contract between him and one of several defendants, and under subsequent contracts between such defendant and his co-defendants, in relation to the same matter, claims, in good faith, a right to be boarded without charge, as due to him upon a just construction of such contracts, and such board has been furnished under such claim, and as of right due to the plaintiff, the defendants so furnishing it cannot recover of the plaintiff for its value, though the Court may think the plaintiff’s construction of the contracts erroneous.

When an owner of property, at the time encumbered, assigns it to another on his agreement to pay the encumbrance and sell the property, and, after satisfying his advances and disbursements in that behalf, to pay to the assignor one-half of any surplus left, and of any profits made by the use of the property in the meantime, and finally, the two agree upon the sum to be paid to the original owner, in satisfaction of his interest and claims, and such assignee then sells and transfers such property, subject to such original owner’s claims thereon and interest thereon, and such second purchaser agrees to pay the sum so adjusted and agreed upon, and he subsequently transfers the property to a third purchaser, who does not agree to pay it, but subject expressly to such claim, and the thud purchaser sells it to a fourth, subject to such claim, and who also agrees to pay to the original owner the said sum so agreed upon; an action maybe maintained by the original owner against all of said defendants, to have the property sold and the proceeds applied to pay the sum so agreed upon, and in default of the said amount being realized from the property, to collect from the said first and second purchaser, in the order of their liabilities, the amount of the deficiency.

Jn such an action the original owner may have judgment against the first and second purchaser severally for the amount so agreed upon, upon their promise to pay it. But he can have no such judgment against the third purchaser, as he did not personally promise to pay, nor against the fourth purchaser, as his promisee was under no personal liability to pay.

On such a state of facts, the claim to have the sum so agreed upon declared a lien upon the property, and ordered to be paid out of it by a sale of the property, and such an application of its proceeds, is a single cause of action. The several

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liabilities of such purchasers are collateral matters, and may be enforced to make good any deficiency resulting from a sale of the property.

An assignment by a plaintiff, pendente lite, of his interest in the subject of the action, does not abate it. It is discretionary with the Court to substitute the assignee as plaintiff or allow the action to proceed in the name of the original plaintiff: when a motion to so substitute has been made and denied, and the time to appeal is allowed to expire, the fact of such a transfer cannot be made available at the trial, to defeat a recovery, nor does it present a question which can be considered, on an appeal from the judgment.

Nor will the judgment that may be rendered at the trial be different, in its substantial terms, from the judgment that would have been rendered, had no such transfer been made.

(Before Bosworth and Woodruff, J.J.)

Submitted, June 5;

decided, October 17, 1857.

This action comes before the Court, on an appeal by the defendants from the whole judgment, and by the plaintiff, from a part of the judgment. It was tried before Mr. Justice Hoffman without a jury, in February, 1856. The judgment appealed from, was entered in December, 1856. The action was commenced about the 11th of April, 1854, by Samuel Ford, plaintiff, against Henry J. David, & Don. M. M. Turner, as defendants.

The original complaint alleged that, on and before the 24th of October, 1853, the plaintiff was proprietor of the Mercantile 'Hotel, consisting of Nos. 2, 4, 6, and 8 Warren street, in New York city, and of unexpired leases thereof, and of all the furniture and fixtures therein; that the leases and all the furniture and fixtures, except some $3,000 worth of furniture, had been mortgaged to David S. Jones. A schedule of the property so mortgaged was annexed to the mortgage. Jones had assigned the mortgage to P. T, Barnum, $14,000 was due on it. Barnum desired payment. Plaintiff could not pay without assistance. David knew this, represented himself to be wealthy, and proposed to assist plaintiff, and on the 24th of October, 1853, David and plaintiff by a written and sealed agreement, agreed as follows:

The agreement, after reciting plaintiff’s ownership of the leases and furniture, the existence of the mortgage, and that David, at Ford’s request, had joined him, in executing to Barnum two notes of $7,000 each, of that date, payable, one in 10 days, and the other in 43 days, which are secured by a mortgage on such furniture and leases, provides and declares that Ford “ hereby conveys” to David, the Hotel, leases, and all furniture

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set forth in the schedule annexed to said mortgage, also the fixtures ; David’s possession to date from the 21st of said October. He agreed to pay the said notes, and the rent of that quarter, .to be due on the 1st of November then next, and was to have the rent from the undertenants, and Ford agreed “ to loan” for 45 days, to David $2,000 on .or before the 1st of. November, towards paying said rent. . ■ .

It further provided as follows:

“ It is also agreed by and between the parties aforesaid, 'that as long as said David carries on the said Hotel business, he is to retain said Ford, with his family, to manage and conduct it, under said David’s direction and control; and the said Ford for himself agrees so to manage and conduct it, faithfully, and to the best of his ability.

“And this agreement also witnesseth, that the said'David, his executors, administrators, or assigns, is to make such' advantageous sale of the said Hotel, and of said buildings, and "of said leases, and of said furniture, and of said fixtures, as may appear advisable, and receive the proceeds thereof, and out" of the proceeds thereof, and the profits of carrying on the said business, to pay the aforesaid notes and all charges and expenses, and all payments paid, or made, liabilities incurred by said David, his executors, administrators, or assigns, so as fully to indemnify and pay said David in full for all principal and interest, and then in case said Ford shall have faithfully performed his part of this agreement to pay unto said Ford one half of the remainder of said profits of said business, and of the proceeds of the disposition of said premises; but after said David shall have been fully reimbursed, said Ford, if he choose, is to collect and receive the one half of said proceeds, directly from the purchaser or purchasers.

“And it is further covenanted and agreed by and between the parties hereto, that on payment by said David, of said notes, he does and shall become substituted in the place of said Barnum, as mortgagee under the mortgage given to said Barnum to secure said notes, holding the same only as security for him under this agreement.”

The complaint also states that, when this agreement was made, the plaintiff was in possession, and since has been, and managed the Hotel faithfully, though conducted in David’s name, until

p. 573

David assumed the control, which he soon did do. It insists the conveyance of the 24th of October, 1853, is a trust conveyance, that plaintiff is equitable owner of the property, subject to David’s claim under it. It states that David paid the two notes of $7,000 each, and plaintiff on the 1st of November, 1853, lent him the $2,000, no part of which has been paid. That on the 3d of November, 1853, Ford and David entered into another written and sealed agreement, and sets forth a copy of it. That agreement, after reciting the agreement of the 24th of October, 1853, proceeds thus: “ and whereas said David agrees to retain said Ford to manage and conduct said Hotel, under said David’s control and direction; and in consideration of which services, and the other covenants in the above named agreement, said David agreed to give to said Ford, the one half of the profits of said Hotel, and the proceeds of sale of said Hotel, after said David has indemnified himself out of such proceeds, all the money paid to P. T. Barnum, and any other moneys expended in said Hotel, or any liabilities incurred by said David for said Hotel.”

“ Now, it is hereby understood and agreed upon, that if said David at any time during the term of said leases elect to sell said Hotel and lease, furniture and fixtures of said Hotel for any price that he may be offered for the same, that the said David will give said Ford notice of said intention of at least ten days prior to such sale, and specify such price, and said Ford shall have the right during, or at the expiration of ten days, to purchase, or procure a purchaser for the same price, and on the same terms as offered by others to said David.”

The complaint then states that another written and sealed agreement was entered into between Ford & David on the 10th of December, 1853, and sets forth a copy of it. It recites the two previous agreements and then proceeds as follows:

“ Now this agreement witnesseth, that for and in consideration of the premises and the sum of one dollar respectively paid by each to the other, the said parties have hereto for themselves, respectively and their respective executors, administrators and assigns do covenant, promise and agree, that said Ford, for and in consideration of moneys when paid, and benefits hereafter to be received, expressed and set forth, will assign and transfer to

p. 574

the said David all and every interest the said Eord, has in and unto the said Hotel, as set forth in said agreement, made and entered into, by and between said parties on the 24th day of October last, and also on the 3rd day of November last, and give said David a receipt in full of all other claims and demands he, the said Eord may now have against the said David, and will quietly and peaceably (within two weeks after this date) move out of said Hotel himself and family, reserving the right to take away and remove all of his, said Ford’s personal effects and household furniture in said Hotel, not included in a schedule or invoice attached to a mortgage or invoice given to David S. Jones, as above referred to in the aforesaid agreement, dated the 24th day of October last.

“Now the said David, for himself, his executors, administrators, and assigns, does promise, covenant and agree, for the above consideration, to pay to the said Ford, on or before the expiration of three weeks from the date of this contract, the sum of three thousand and one hundred dollars, in current money of the City of New York, and board the said Ford and his family for two weeks, free of expense to said Ford, and for such longer time as the aforesaid three thousand and one hundred dollars shall remain unpaid, not to exceed three weeks from this date, at which time, if not before, it shall be paid by said David or his assigns, to make this contract or agreement binding or valid as against said Ford.

“In witness whereof, the parties to these presents have hereunto interchangeably set their hands and seals the day and year above written.”

The complaint then states that, on the 26th of January, 1854, David & Turner entered into a written agreement, by which David sold and Turner bought the leases, fixtures, and furniture mentioned in the schedule, annexed to the mortgage, but subject to the agreement of the 24th of October, 1853, and Turner agreed to pay, therefore, $10,900, and covenanted to pay the plaintiff on demand $3,100, and hold David harmless from all claims of the plaintiff, the agreement to be left in escrow with H. A. Mott, Esq., and not be delivered t<? Turner until he paid to plaintiff or satisfactorily arranged with him for the $3,100. That Turner had at the time full knowledge of all the agrees

p. 575

ments. He entered at once into the hotel, and is still carrying it on. He has not paid any part of the $3,100. Plaintiff has not given up possession, nor relinquished any of his rights, to him or to David.

Turner boarded plaintiff and his family until the 3d of April, 1854, when he refused to do so any longer, unless paid for it, or allowed for it on the $3,100. He threatens to sell the hotel, leases, and furniture; and David has notified him not to pay the $3,100 to plaintiff. It alleges that David & Turner are colluding together to defraud and deprive him of his rights. That Turner is using a large part of the furniture not in the schedule, annexed to the mortgage. It prays judgment that David & Turner pay the $3,100, and interest, and that until it is paid, they be enjoined from selling or encumbering the leases, furniture, or fixtures, and that Turner be enjoined from removing the plaintiff or his family. That a receiver of the property be appointed to sell the property, and out of the proceeds pay to the plaintiff the $3,100, and interest, and for other relief.

David put in a separate answer, sworn to on the 25th of May, 1854. It controverts the allegation that the plaintiff had furniture in the hotel, other than that mentioned in the schedule, annexed to the chattel mortgage.

It admits the agreement with the plaintiff “as stated in said complaint,” but denies making any representations, or that it was entered into under the circumstances alleged.

It denies, that thereafter the plaintiff continued jointly with David in possession, but avers that David took possession, and retained plaintiff and his family under the agreement, to manage, &c.; but avers that the plaintiff was so unfaithful, and careless, that David was compelled to, and did take entire control, and continued it, until he made the disposition of the hotel, &c., stated in the complaint; and charges that the plaintiff and his family remained contrary to the agreement, and to David’s express wish; and “ this defendant claims damages therefor, by way of counter claim.”

It denies that the agreement of the 24th of October, 1853, was a trust conveyance, or that the plaintiff is equitable owner, and claims that David became, thereby, seized, and possessed as absolute owner.

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It admits that David carried on the hotel up to the time stated, but denies that the plaintiff conducted the hotel faithfully for any portion of time, and alleges that he was negligent and, unfaithful, whereby he broke the agreement on his part, and forfeited all right to be retained with his family to manage and conduct, &c. It admits the making of the two subsequent agreements, and the agreement with Turner as stated in the complaint, and avers that the sale to Turner was subject to the payment of the $3,100, and that this sum was reserved out of the consideration money for that purpose.

Admits notifying Turner not to pay the $3,100, and says he did so, because larger sums were due for taxes and back rent, when the first agreement was made, which the plaintiff agreed to pay, but did not, and David was compelled to pay them, and that he has a right to retain it out of the $3,100, and also his reasonable charges for boarding plaintiff and his family, until the hotel was sold to Turner, and claims to recover $4,000, by way of counter-claim. • Denies aE conspiracy or coEusion with Turner, and prays a dismissal of the complaint with a judgment for his counter-claim.

The plaintiff by a reply (verified the 7th of October, 1854) denied promising to pay taxes or back rent, but avers that David agreed to pay them, and avers that the board of plaintiff and his fanfily, payment for which is sought to be enforced as a counterclaim, was furnished under the agreement of the 24th of October, 1853, and that the plaintiff is not indebted to David in any sum.

The defendant Turner, by a separate answer, sworn to on tho 24th of May, 1854, admits plaintiff’s ownership of the hotel, and aE furniture and fixtures therein on the 24th of October, 1853 ; the mortgage held by Barnum; that he required payment, and plaintiff was unable to pay, but denies that plaintiff had furniture, not covered by the schedule, annexed to the mortgage, of more than the value of $150.

It alleges that, when the agreement of the 24th of October, 1853, was made, the plaintiff was® solvent, and that the said agreement was, in fact, and was intended to be an absolute sale, and that David paid the notes to Barnum, and thereupon, David’s title became absolute, and the “plaintiff only wag ■ entitled to the said articles in actual use as aforesaid.”

p. 577

It denies that plaintiff occupied jointly with David, and avers that after Turner took possession, the plaintiff and his family remained as boarders or tenants at license. It denies that the agreement of the 24th of October is a trust conveyance, or that plaintiff is the equitable owner. Denies that plaintiff loaned David the sum of $2,000.

It avers that the agreement of the 10th of December was a proposition by the plaintiff to release David from all claim for the alleged loan of $2,000, and for all claim for profits for $3,100 and three weeks’ board, but says it never took effect, and that it lapsed by non-performance within the three weeks.

It avers that Turner, by two agreements with David, one dated January 26, the other January 28, 1854, and recorded in the office of Register of the City and County of Hew York, bought the leases, furniture, and fixtures, “ except the personal effects as aforesaid in the use of said plaintiff and his family,” and entered into full and absolute possession thereof. David did not pay, but Turner did pay, the rents which David had agreed to pay. The stipulation to pay to Ford the $3,100 was a personal contract with David, in which the plaintiff had no interest, and which he did not accept; and the notice from David not to pay it to Ford put an end to any claim of the plaintiff against Turner therefor.

It denies that Turner ever knew of the plaintiff’s having any interest in the hotel, except as before recited, or that he owned any furniture not included in the mortgage schedule, “except the articles aforesaid in the actual use of the plaintiff’s family.”

It admits Turner went into possession when he bought and continued the business as proprietor, until the 10th of February, 1854, when he sold to T. W. Wheeler, since when he has had no interest in, nor been connected with it.

Denies that plaintiff had not given up possession when Turner bought, and avers that before that he gave full possession to David.

Admits that he refuses to pay plaintiff the $3,100 on the grounds before stated, and because David has forbidden it and “ is largely indebted to him.”

It admits that the plaintiff has not sold or assigned any interest in the hotel to Turner, says he had none to sell, and

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was about being ejected, when he agreed to quit peaceably, as soon as he could get another boarding-place for his family.

Denies that, after Turner bought, the plaintiff had any interest in the leases, furniture, or fixtures, or any right to be boarded, or claimed to have, or that Turner has recognised the existence of any such right, or that Turner boarded them without claiming payment therefor; but insists, that as soon as he took possession he notified the plaintiff he must pay full board, viz., $75 per week, which sum he owes Turner, and it “amounts to several hundred dollars.” It says he refused to board him, unless he paid at once, and that Turner never requested to have it allowed on the $3,100; denies plaintiff’s right to stay in the hotel, and admits that he threatened to remove him for not paying, and denies he is doing anything to defraud plaintiff out of the' $3,100; does not know as plaintiff applied to David for the $3,100, nor what answer David made.

It denies all conspiracy and fraud, or that Turner is using any furniture of the plaintiff’s.

It then alleges a sale to Thomas W.* Wheeler, on the 10th of February, 1854, and that since then he has carried on the hotel as Wheeler’s tenant, and,.in “ subservience to his proprietorship of the same, and since said 10th of February this defendant has had no interest in said hotel, other than to carry the same on, as the keeper thereof.” It then denies “ each and every allegation in said complaint, necessary and material to be answered unto, and not hereinbefore and hereby specially answered unto, confessed Or avoided, admitted or denied.”

On the 4th of October, 1854, Mr. Justice Campbell, on affidavits and notice of motion, made an order that plaintiff' have leave to reply to David’s answer within four days, and “ to file and serve a supplemental complaint in the cause, making Samuel P. Townsend and John Johnson parties defendants, alleging that they have become assignees of the interest of the defendant, Turner, since the commencement of this suit,” upon the terms stated in such order.

On the 7th of October, 1854, a supplemental complaint was served, in which David, and Turner, and said Townsend, and Johnson are named as defendants. It alleges that this action was commenced on the 11th of April, 1854, that the summons

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and a copy of the original complaint were served on Turner on that day, and on David on the 14th of that month.

That on that day Turner was, by order of the Court, enjoined according to the prayer of the original complaint, and such order was served on him on that day, and is still in force, and on the 15th of said April, notice of the pendency and object of this action was duly filed. That David served an answerJ on the 24th of May, and Turner on the 26th of May, 1854.

That, at the time this suit was commenced, Turner occupied such parts of the hotel as were not used and possessed by the plaintiff and his family, subject to the right and possession of the plaintiff, as claimed in the complaint.

That on the 14th of April, 1854, Turner quitted the hotel and gave up possession to one Smith, who had previously been assisting Turner, and Smith remained until August, 1854, when he left.

When this suit was commenced, plaintiff was ignorant of the transfer by Turner. to Wheeler; the same had not then been, nor since has been recorded.

It then alleges, that on the 9th of May, 1854, Wheeler, “ by his attorney duly authorized,” transferred the hotel, fixtures, and mortgaged furniture, to Samuel P. Townsend, “subject to plaintiff’s lien and claim therein for, the aforesaid sum of $3,100, which the said Townsend assumed and agreed to pay off and discharge, as a part of the purchase-money of said property.”

That, before the sale to Townsend, he and Wheeler’s said attorney knew of the agreement between the plaintiff and David, and of the plaintiff’s claim and right to remain in possession until he was paid the $3,100, and that the plaintiff was in possession, claiming a right to so occupy. Both of them knew of the pendency of this action, and at the completion of such sale, Wheeler’s said attorney deducted $3,100 from the contract price, on account of plaintiff’s said claim, to be paid by Townsend as aforesaid.

Early in August, 1854, after Townsend so purchased, he made some transfer to said Johnson, the particulars of which are not known to the plaintiff, by which said Johnson claims some interest, jointly with Townsend, in the hotel leases, fixtures, and all the fiirniture except that owned by the plaintiff, and at the time

p. 580

of such transfer Johnson knew of the pendency of this action, and of said injunction, or of some injunction, in force, “for the protection of plaintiff’s aforesaid claim,” and of plaintiff’s possession,, and Ms, lien thereon to secure the $3,100, and of his claim and right to occupy until it was paid, and of the furniture owned by the plaintiff and not owned by the chattel mortgage.

That under, such, or some other agreement, Townsend and Johnson took possession, in August, 1854, of said property, and of some.articles belonging to the plaintiff, and are still in possession, except of the rooms occupied by the plaintiff and his family, and conduct the hotel for their joint profit.

That , plaintiff has demanded the $3,100 of each of them, and each has refused to pay it. It then ¡Drays the full benefit of this action against them, and the same relief as prayed against David and Turner.

It also demands judgment as prayed in the original complaint, and also that Townsend and Johnson be ordered to pay the $3,TOO, and to deliver to him the furniture that belongs to him, and that they may be enjoined from selling or encumbering it, or disturbing the plaintiff’s enjoyment of the apartments occupied by himself and family; that they may be ordered to assign and transfer the leases, &c., to a receiver to be sold to pay the $3,100 and interest, and for further relief.

Townsend and Johnson demurred “to the complaints herein taken together,” and Turner also demurred to the “supplemental complaint,” on grounds which they severally stated in such demurrers,

On the 30th of March, 1855, Mr. Justice Deer, after argument, overruled the demurrers, “with liberty to answer said complaint in.twenty days, upon payment of costs,” and such order,, on an appeal therefrom, was affirmed, November, 1855, at a General Term held, before Duer, Bosworth, and Slosson, J. J.

No answers were interposed, pursuant to the liberty so given. And on the 28th of February, 1856, the action was brought to trial before Judge Hoffmah, as? before stated, on the issues raised by the answers of David and Turner, and to obtain the relief to which the plaintiff was entitled as against Townsend and Johnson.

p. 581

When the cause was called and the trial commenced, David and Turner, by Mr. S. Sanxay, their counsel, “moved that the trial take place by a jury.” This was denied, and they excepted.

David and Turner then moved that the trial proceed on the original complaint, their answers thereto, and the reply to David’s answer, and that the supplemental complaint, so far as they were concerned, "be regarded as out of the case. The Justice decided that he wbuld hear the case on the issues of fact on the part of David and Turner, and give such judgment against Townsend and Johnson as the plaintiff was entitled to, on the facts stated in the supplemental complaint. Each defendant excepted to this decision. The counsel of all the defendants then moved that.“the supplemental complaint be made to conform to the order allowing the same, and all other statements to be considered extraneous.” The Judge denied the motion, and “ decided that the case must be tried on the pleadings, as they were on the record.”

Townsend and Johnson then moved, that inasmuch as their demurrers had been overruled, that no proceedings be had against them until judgment was entered on said demurrers. But the Judge decided that “the present is the proper time to proceed against all the defendants; that the defendants Townsend and Johnson, by omitting to answer, stand in the light of defendants who have allowed a bill pro confesso, and that the Court must now decide upon the equities of the case.

“ To all which the said counsel excepted.

“The counsel for the defendants David and Turner then moved that the complaint be dismissed, on the ground that the same does not show any jurisdiction in this Court, and on the ground that it does not contain facts sufficient to constitute a cause of action against the defendants jointly, nor against David and Turner, with Townsend and Johnson jointly, nor any two of them, nor against any of them severally.

“Which motion being denied, said counsel excepted.

“A like motion was then made on behalf of all the defendants severally.

“But such motion being denied, sgiid counsel of the several defendants excepted.

“The counsel for defendants Townsend and Johnson then

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tendered an answer, then sworn to by defendant Townsend, and an affidavit, sworn to by defendant Johnson.”

“ The Court reserved any decision in respect to said answers for the present.

“ The cause then proceeded to trial upon the issues raised by the defendants David and Turner in their answers.

“The counsel for plaintiff then read in evidence the agreement set forth in the complaint dated October 24th, 1853; also the agreement set out in the complaint dated Kovember 3d, 1853; also the agreement set out in the complaint dated December 10th, 1853; then an agreement set out in the complaint dated January 26th, 1854, between David and Turner.”

The latter agreement was recorded on the 20th of February, 1854, and by it, David’s transfer to Turner was in terms “ subject to all the terms, conditions and covenants in saidythree leases set forth, and also subject to all the covenants, conditions and terms contained in the assignment of said three leases to party hereto of the first part by one Samuel Ford, bearing date the 24th day of October, 1853.”

It also contained the following clause, viz.—

“And the said party of the second part also agrees that he will pay to one Samuel Ford, on demand, the further sum of $3,100, and take from said Ford a receipt therefor for the account of party hereto of the first part, and deliver the same within twenty-four hours after payment thereof to the party of the first part, and to hold said party of the first part harmless from all claims on the part of said Samuel Ford, arising out of said leases or contracts made between said Ford and party of the first part in regard to the aforesaid premises.”

It also declared that said conveyance was “not to be delivered to said Turner until thirty-one hundred dollars are paid as aforesaid, to said Ford, or arranged satisfactorily with him.”

An instrument of assignment, by which David assigned the . leases to Turner, dated the 28th of January, 1854, was also put in evidence, and by the terms of such assignment it was made, “also siibjeet tó all the covenants, conditions and terms contained in the assignment of said three leases, to me, the said Henry J. David, by one Samuel Ford, bearing date the twenty-fourth day of October, one thousand eight hundred and fifiy

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three, and also subject to the terms of a certain agreement made between the said Turner and myself, dated the twenty-sixth day of January, one thousand eight hundred and fifty-four, and the covenants, conditions, and provisions therein also mentioned.”

There was also put in evidence an assignment by Ford, the plaintiff, to Jehiel Parmly, dated the 16th of September, 1854, of the claim in question, in trust, to pay certain creditors of Ford, therein named.

Also an assignment from said Ford to David D. Winchester, dated the 17th of October, 1854, of any surplus interest, in said claim, in trust to pay other creditors named in the last mentioned assignment.

Also a copy of the lis-pendens filed on the 15th of April, 1854.

The defendant’s counsel put in evidence an order of the Court of Common Pleas, made on the 21st of May, 1855, on proceedings supplementary to execution, in an action in which Oliver Clarke was plaintiff, and said Samuel Ford was defendant, appointing Peter Valentine a receiver of such defendant’s property, upon his executing and filing such a bond for the faithful performance of his duties, as the order prescribed.

The said counsel then moved to dismiss the complaint on the ground that it appears that plaintiff has no interest in the action.

.Motion denied on the ground that an order which was before the Court had been entered, denying the application for the substitution of another plaintiff, as follows:

The order recites a motion by plaintiff that Ford’s assignee be' substituted as plaintiff, that the defendants opposed the motion, and then denied it.

The plaintiff called a witness, and was proceeding to examine him as to the value of board for the plaintiff and his family, insisting that he had a claim for its value during the time it was refused to him, and defendant’s counsel “objected to any proof subsequent to April 11, 1854, when suit was brought.”

The Court sustained the objection, and held that the proof must be limited to that date, without prejudice to the question of board since the commencement of this action.

When the plaintiff rested, (as the printed case states)

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“ Motions on the part of defendants, to dismiss the complaint were renewed.

Same denied. Exception.

The said counsel then moved to dismiss the complaint, on the ground that it appears that the plaintiff has no interest in the action.

Motion denied, on the ground that an order which was before the court had been entered, denying the application for a substitution of another plaintiff. Exception.

The counsel for Townsend & Johnson moved that the complaint be dismissed as to them, inasmuch as the plaintiff had not, at the time of the filing of the supplemental complaint, any interest in the action.

Motion denied. Exception.

Counsel for defendants move that the assignees, Parmly & Winchester, one or both of them, be brought in as parties.

Counsel for defendants renew their several motions aforesaid, severally.

And the same being again severally denied, said counsel except.

The counsel for defendants, David and Turner, then commenced to open their case, when the said Justice desired the said counsel to state what was expected to be proved, in writing.

Whereupon the said counsel made the following offers of proof of certain facts, and moved the Court that the answers of said defendants might be amended so as to admit of such proof, if the same did not already permit it; or that such answers be made to conform thereto, when such proof should be brought in.

Which said offers are as follows, to wit. Defendant David offers to prove,

1st. That he was induced to enter into the agreement with plaintiff, of the 24th of October, by the falsehood and fraud of the plaintiff, and his misrepresentations and deceit, in respect to the Hotel, and its costs, business, profitableness, and value. That in truth, the Hotel, leases, &c., cost Ford but $10,000, though he represented that the same cost him a much larger sum. That in truth he procured but $12,000 from Barnum, though the mort

p. 585

gage was $14,000, and that of the $12,000 he paid but $10,000 to Jones, and reserved $2,000 for himself. And in truth the property never was worth more than $10,000.

2nd. That the agreement of Nov. 3 was entered into upon the representation by plaintiff that he then had in view a purchaser of the hotel, &c., at a price of $20,000 and upwards, which was false, and that, at all events, ten days notice of the sale to Turner was given to him.

3rd. That the agreement of 10th December was meant by the plaintiff to be a mere offer to quit the hotel, and give a full acquittance to David within three weeks, for $3,100, and that if David did not accept the offer in that time, it was to fall through, and be at an end, and they were both to stand as if that agreement had not been made. That David understood the agreement in that sense, and that plaintiff knew that he so received the agreement in that sense, and meant that he should so receive it, and that it was in view of their securing the $20,000 purchaser, and to re-let it to him within that time.

4th. That the hotel made no profits but was a loss to David of about one hundred dollars per day for all the time that he kept it, and until he sold it to Turner; and that the sale to Turner was at a loss upon David’s investment; and that David never was indemnified for his advances and expenses in reference to the hotel, but he lost at least $5,000.

5th. That the property mentioned in the schedule to the Barnum mortgage, was not all delivered with the hotel to David, but that there was a large deficiency, which was only subsequently to the sale to Turner discovered.

6th. That the assumption of payment by Turner of $3,100 to Ford was upon the express condition that Ford was to release David, and look to Turner, and that he should at once quit the hotel, and extinguish all claim he had against it and against David.

7th. That at the time of the .sale to David, or to Turner, Ford had no personal effects in the hotel, except a few articles, not exceeding one hundred and fifty dollars in value, but that he subsequently carried away ten cart loads of furniture, which exceeded in value three thousand dollars.

8th. That Ford at the time of sale to David was largely

p. 586

indebted to various persons as judgment creditors; that he has since said sale made an assignment of all his interests under the agreements above named, to one Jehiel Parmly, and created a resulting trust in himself, to the exclusion of his judgment creditors, and that since said assignment, which is void as against creditors, all the interest of Eord in the hotel,'leases, and furniture has been sold by the Sheriff.

9th. That Turner undertook to pay the plaintiff $3,100 upon the express understanding that he should at once quit the hotel with his family, and that he refused to do so, but continued to remain there and occupy rooms to the detriment and damage of Turner of about sixty dollars per week or more, and that he became indebted for that sum, and still owes the same.

10th. That on or about the 28th day of October, 1854, an injunction upon an order supplementary to execution was issued out of the Common Pleas Court against Ford; and that subsequently on or about the 21st day of May, 1855, a general receiver of all his property, rights and interests was appointed by said court.

11th. That taxes were unpaid which accrued while Ford was in possession of the hotel, which he was bound to pay, under and for which taxes a large part of the furniture of said hotel had been sold by public authority, and which defendants had to pay $1,100 to redeem.

Defendant, Turner, offers to prove all the foregoing, and also,

1st. That when he bought the hotel, Ford misrepresented it in its value and profitableness; that he stated that he had no claim upon it, and no furniture in it, except about $50 worth.

2nd. That his agreement that he was to pay him $3,100 was upon the express understanding that said Ford and his family were at once to remove from the hotel, and take away his personal effects; or that if he remained he was to pay full board, and that he did remain a long time and became indebted for more than $3,100.

3d. That David did not deliver the whole amount of furniture agreed to be sold, but that there was a large deficiency which was, subsequently to the agreement of the 28th of January, discovered, whereby he was entitled to an abatement from the purchase price to a sum exceeding $3,100.

4th. That the transfer of the Leases was subject to back rents falling due 1st February, 1854, which by agreement of sale to Tur

p. 587

ner, David was to discharge; that he did not discharge the same, but Turner had to pay the same, as the landlord took proceedings under Landlord and Tenants Act, to remove him from the premises; that the rent was $13,000 and upwards per annum, and the sum thus paid, was one fourth of the same, which he has the right to offset against the claim of $3,100 and claims the residue as against David.

5th. That his promise to David to pay Ford $3,100' as part of the consideration, was for David’s benefit, and the consideration failed wholly, or at all events to an extent beyond the $3,100, and that as his agreement was with David, by covenant, he has a right to recoup or offset the same against that demand.

Said defendants offer further to prove,

That the agreement of December 10th, 1853, made between David and Ford was cotemporaneous with, subject to, dependant upon, part of, and to be construed in connection with an agreement made and entered into by and between David and one Ruth Aun Ross, bearing date, December 10th, 1853, whereby said David agrees to sell, and said Ross agrees to buy the Mercantile Hotel, &c., within three weeks from that date, for the sum of $24,000, which agreement fell through, and was abandoned, of all which said Ford had due notice, and was privy to at the time.

The Court overruled, on said motion, all of these offers on the part of David, except the 7th and 10th, which was admitted by the plaintiff’s attorney; and all on the part of Turner, except the last part of the 1st, after the word “profitableness;” and the 2d.

To which decision, overruling as aforesaid, and said denial of said motion, the said counsel for defendants excepted, and the said counsel specifically excepted to the decision and ruling of the said justice upon each and every of the said offers, and each and every of the said motions.”

The said counsel for defendants David, and Turner, then called and examined witnesses on their behalf severally.

Various exceptions were taken during the progress of the trial, not necessary to be stated. When the defendants, David and Turner rested, the said Justice made the following decision in reference to the answer of defendants Townsend and Johnson. (Exclusive of its recitals, it reads thus, viz.:)

p. 588

11 It is ordered that the said defendants have leave to serve the answer to said supplemental complaint now proposed, on the following terms, to wit:

“ Immediate payment of the costs of the demurrer and of the appeal thereon to the General Term of this Court, and the withdrawal" of any appeal which may have been taken thereon to the Court of Appeals.

“ A written consent on the part of the defendants, to be filed with the clerk Immediately, that the testimony in the cause be taken as against the defendants, Townsend and Johnson, under their answer.

“ That no further testimony be adduced on their behalf, except to those declarations of the plaintiff made to them or their agents at or about the time of their purchase, as to his, the plaintiff’s claim in the premises, or, also, as to their knowledge of the agreements between the several parties or either of them as to Townsend’s assumption of the sum of $3,100 to the plaintiffs as provided in the agreement of the 10th of December, between the plaintiff and David.

“ That any written contract or instrument under which Townsend and Johnson, or either of them, purchased the premises in question be produced forthwith, or affidavits of each defendant and their respective attorneys as to the loss of the same.

“ That the question of the plaintiff’s claim to board until the said $3,100 be paid, be adjusted in this action down to the time of the trial thereof.”

Whereupon the counsel for defendants objected as follows:

“ The defendants Townsend and Johnson are willing to put in. their answer without any qualification to it as proposed on the terms imposed by the Court, so far as the payment of the costs upon overruling their demurrers, and the appeal therefrom to the General Term is concerned, as soon as such costs are settled in amount, and adjusted. But they claim as a right that they have by the terms of this Court, overruling the demurrers, which allows them twenty days to answer upon payment of costs, that period of time to answer after the costs are taxed and adjusted, which as yet has not been done, or in other words that they have twenty days to pay the coste of the demurrers, and to answer after the sums which they are to pay as such costs shall

p. 589

be fixed. They, therefore, object to the Court prescribing any other terms than the payment of the costs immediately, which they will comply with as soon as they are adjusted; they further object to the Court allowing the plaintiff to try an independent cause of action not set up in the complaint; they further insist that the Court ought in furtherance of justice, to permit these defendants to maintain their answer exactly as proposed, and by any and all competent proof in their power to produce; and that the Court ought not to require testimony in the cause which may be competent and proper in respect to David and Turner, to be admitted as against these defendants, though incompetent and improper as to them; and that the Court ought not to abridge the right of appeal, if such right exists, from the decision of the Court upon the questions of law raised by the demurrers; nor ought the Court to embarrass a full and fair trial of the cause, and the issues presented by the answer of these defendants, most especially as the plaintiff m^kes no proof, or pretence even of any surprise by the answer.

“S. Sanxay,

“ As counsel for dft.

“ The counsel for the defendants is willing to make affidavit if the allegation be denied, that the costs of the demurrer have never been adjusted, nor even served, nor have any steps been taken by plaintiff’s attorney to cause the same to be adjusted.” But the said Justice refuses to change his decision. Whereupon the counsel excepted to the ruling and decision of the Justice upon each and every of such objections.

Said Justice made his decision, in writing, on the 6th of March, 1856,. which, exclusive of its recitals, read thus, viz.:

“ It is declared and adjudged by the Court, that the plaintiff do recover the sum of $3,586, as well from the defendant Henry J. David, as from the defendant Don M. M. Turner, and from the defendant, Samuel P. Townsend, respectively, such sum being the amount of three thousand one hundred dollars, with interest, after deducting the amount of nineteen dollars and forty-three cents, an amount which it is further declared and adjudged is payable by the plaintiff, |or the value of rooms occupied by him in the Mercantile Hotel, mentioned in the

p. 590

pleadings, from the third to the eleventh day of April, 1855, and that the plaintiff have execution against the defendants, David, Turner, and Townsend, severally, for such amount, being three thousand five-hundred and sixty-six dollars and fifty-seven cents.

“ And it is further declared and adjudged, that the plaintiff is entitled to, and that he has an equitable lien upon the furniture and fixtures, and what remains of the furniture, comprised in the schedule to the mortgage given by the plaintiff to David S. Jones.

“And it is further declared and adjudged, that a receiver be appointed to take charge of such furniture and fixtures, and sell and dispose of the same, for the payment of the said sum of three thousand five hundred and sixty-six dollars and fifty-seven cents, and the interest thereon, until the same shall be paid.

“And that it be referred to John L. Mason to approve of a person to be such a receiver, and to report his name to this Court, with the amount of security proposed, and approved by him.

“ And it is further declared and adjudged, that the plaintiff recover against the defendants respectively, except the defendant Johnson, his costs and disbursements, amounting to the sum of and that he also recover from the defendants David and Turner only; the additional allowance of two hundred dollars, granted by an order of this Court.

“ And it is further declared and adjudged that this judgment be without prejudice to the question of any liability of the plaintiff for lodgings after the eleventh day of April, 1854, and further, that the proceedings for the appointment of a receiver be suspended until the return of executions against the said Turner, David & Townsend, respectively, unsatisfied.

“M. Hoffman.”

Various exceptions were taken by the defendants in due time, to the decision of the Court.

The printed case, contained a statement of the facts found by the Court, and its conclusions of law thereon, as follows, viz,:

p. 591

N. Y. SUPERIOR COURT.

Samuel Ford, against

Henry J. David, Don M. M. Turner, - Samuel P. Townsend and John Johnson.

Facts found by Justice, and bis conclusions of Law.

This cause was tried before me without a jury, and the following are my conclusions of fact and law thereon:

That an agreement dated the 24th of October, 1853, was entered into between the plaintiff and the defendant David, a copy of which is set forth in the preceding case.

That another agreement dated the 3d of November, 1853, was also entered into between the same parties, a copy of which is also contained in the case. That a further agreement between the same parties, dated the 10th of December, 1853, was also entered into, and a copy thereof is set forth in the case.

- That an agreement or instrument in writing was entered into and executed by and between the defendant David and the defendant Turner, dated the 26th day of January, 1854, a copy of which is also set forth in the preceding case.

That on the 28th of January, 1854, in pursuance of the last stated agreement, the defendant David made an assignment to the defendant Turner, of the leases mentioned therein; and .also executed to him a bill of sale of the property, furniture and fixtures in the Hotel, subject to the conditions specified in such instrument, and particularly subject to the claim of the plaintiff for $3,100, as mentioned in such agreement.

That upon leaving said Hotel, the plaintiff Ford was entitled to take away certain articles of furniture, and that there is not sufficient evidence to show that he carried away more than he was entitled to, nor the nature of what he did take away.

That no such representations were made by the plaintiff to Turner upon his purchase from David, as to exclude the plain°tiff from a claim to board beyond two weeks, or to a claim for furniture, except as to articles of the value of fifty dollars only.

That the plaintiff with his family occupied rooms in the Hotel

p. 592

until May, 1855; that after the 3d of April, 1854, he boarded himself and family, and was not supplied by the keeper of the Hotel; and that the defendant’s counsel have refused to permit the question of an allowance for the occupation of the rooms beyond the commencement of this action, which was the 11th of April, 1854, to be passed upon and adjudged.

I further find, as to the defendants Townsend and Johnson, that an assignment was made by the defendant Turner to one Thomas W. Wheeler, of the leases, furniture and fixtures of such Hotel, dated the 10th of February, 1854. That on or about the 9th of May, 1854, Wheeler, by his authorized attorney, sold and assigned the same to the defendant Samuel P. Townsend subject to the plaintiff’s lien and claim thereon for the aforesaid sum of §3,100, which said Townsend agreed to pay as part of the purchase money of the said property. That before the time of his purchase he knew the pendency of the present suit, the injunction and claim of the plaintiff, the agreement between him and David, and that the attorney of Wheeler had similar knowledge.

That the said Townsend in August, 1854, transferred to the defendant Johnson, one half of his interest in such Hotel, furniture and fixtures, and that Johnson had knowledge at the time of such purchase, of the claim of the plaintiff.

That the said Townsend and Johnson have not filed any answer to the supplemental complaint in this action, and that I have considered the allegations of fact contained therein respecting their acts and knowledge as admitted by them, and that the plaintiff is entitled to the relief therein sought against them and each of them.

And I find as conclusions of law, that the plaintiff, by force of the various instruments before stated, is entitled to recover the sum of §3,100 with interest from the 31st day of December, 1853, deducting the sum of §19,43, as of the 11th of April, 1854.

That the plaintiff is entitled to recover such sum, as well from the defendant David as from the defendant Turner, and from the defendant Townsend severally and personally, and may have execution against each and either of them until he receive satisfaction thereof.

That the plaintiff is entitled to a lien upon all the furniture in the Mercantile Hotel, which remains of the furniture comprised

p. 593

in the schedule, to the mortgage known in the case as the Jones mortgage, and is further entitled to a receiver to take possession of such furniture.

That the inj unction allowed in this cause ought to be continued, and that in case the amount so adjudged to be paid, is paid by the defendant Townsend, that he be at liberty to apply on the foot of the judgment, for such judgment against any of the other parties as may be right.

That in my opinion, by the true construction of the agreements between the parties, and under the proofs in the cause, the plaintiff Ford was responsible for the occupation of rooms in the hotel from the third day of April, 1854, when notice was given him to remove, to the 1st day of May,-1855, at $17 a week. But inasmuch as the counsel of the defendant objected to the Court passing upon this allowance for any time after the commencement of this suit, I have not charged the plaintiff with the amount of the same, but only from said 3d day of April to the 11th of such month.

' Murray Hoffman.”

On the 26th of December, 1855, a judgment was entered in conformity with the foregoing written decision.

The plaintiff excepted to the judgment of the Court, so far as the same determines that the agreement of the 10th of December, 1853, gave a right only to board and lodgings for plaintiff and his family for three weeks, and that the plaintiff was bound to pay for the use of the rooms after a notice to leave them; and that the plaintiff was bound to pay, according to the evidence, for the use of the rooms occupied by himself and family, from the 3d to the 11th of April, 1854, a period of 8 days, between the time of the refusal to board and the commencement of this action, .the sum of $19 43.

The plaintiff insisting that by the terms of the contract, bearing date the 11th of December, 1853, the defendant David was bound to board the plaintiff and his family in the Mercantile hotel, as long as the said $3,1.00 mentioned in said agreement remained unpaid, a»

The plaintiff appealed to the General Term from so much of the judgment entered in this action on the 26th day of

p. 594

December, 1856, as allows the defendants the sum of nineteen dollars and forty-three cents for the use of rooms occupied by plaintiff and his family in the Mercantile Hotel, in the city of New York, from the 3d to the 11th day of April, 1854.

The defendants appealed from the whole judgment. (The appeals were submitted on the 5th of June, 1857.)

Wm. W. Northrup, for plaintiff.

S. Sanxay, for defendants.

The judgment appealed from was rendered upon a trial of issues of fact joined between the plaintiff, and David, and Turner respectively, and upon determining, at the same time, the relief proper to be granted as against Townsend & Johnson, on overruling their demurrer to the original and supplemental complaint.

It is insisted that the Court erred at the trial, in refusing to permit the defendant Townsend to interpose an answer to the complaint at that time.

This demurrer was overruled on the 30th of March, 1855, but t liberty was given to him to answer the complaint in twenty days, upon payment of costs. Instead of availing himself of that offer, he appealed from that order to the General Term, and on that appeal the order was affirmed, with costs, on the 10th of November, 1855. This action came on to be tried on the 28th of Eebruary, 1856, and it was during that trial that Townsend tendered his answer. To the decision of the Court refusing to receive it, Townsend excepted.

Even if it be conceded that Townsend had the same time to answer after the decision by the General Term that was given to him by the order of the 30th of March, 1855, he should have tendered his answer within twenty days after the decision of affirmance, by the General Term, or within twenty days from the 10th of November, 1855.—Sands v. M'Clelan, 6 Cowen, 582; Hoadley v. Cuyler, 10 Wend. 593 .

By thapfcerms of the order the answer must be put in within twenty days, or the right to answer was gone. None was tendered within that time, nor until after the trial had commenced,

p. 595

upon notice of it duly given to all the defendants. There was no error, which is the subject of an exception, in refusing to permit Townsend to put in an answer at the trial.

The decisions—that the action was triable by the Court ;■ that it should be disposed of at the trial as to all the parties, and by a single judgment; that the Court had jurisdiction of the action; and that the complaint stated facts sufficient to constitute a cause of action;—were correct, and need neither argument nor authority to show their accuracy.

Each defendant appeared by his attorney at the trial. On the trial the agreements of the 24th October, 1853; ¡November 3d, 1853; and December 10,1853; and also the agreement between David & Turner, of the 26th of January, 1854, were produced and read in evidence. The latter is inserted at length in the ease. By the terms of the latter Turner bought, “subject to all the covenants, conditions, and terms contained” in the agreement between Eord & David of the 24th of October, 1853, and as a part of the contract price covenanted to pay the $3,100 to Eord. By the terms of that instrument it was to remain in the hands of H. A. Mott, in escrow, until Turner paid the $3,100 to Eord, or arranged it satisfactorily with him.

That agreement was recorded on the 20th of February, 1854. The agreement of the 28th of January, 1854, between the same parties, was recorded at the same time. The latter transferred the leases and property, “subject, however, to the claim of Samuel Eord of thirty-one hundred dollars, as mentioned in said agreement,” of the 26th of January, and guaranteed that the property was free from encumbrances “ otherwise than in said agreement is set forth, and said Eord’s claim as aforesaid.”

The assignment of each of the leases by David to Turner was, by its terms, subject to the “ covenants, cónditibns, and terms ” of the agreement of the 24th of October, 1853, and to the terms of the agreement of the 26th of January, 1854.

It necessarily follows that Wheeler, when he purchased from Turner, and also that Townsend and Johnson, when they made their several purchases, knew, or had notice of the claims and rights of Eord. There is no agreement or instrument of transfer, from Eord to Turner, which does not recite them.

Townsend and Johnson, by demurring to the complaints,

p. 596

admit the allegations,' that they bought with notice, and Townsend;' in..the same way; admits that he agreed, as a part of the consideration money to be paid by him, to pay to Ford the $3,100.

The plaintiff, is entitled to recover this sum, out of the property,: unless just' claims to deductions have been properly proved which should be allowed, or unless the Court erroneously excluded evidence, in that behalf, which should have been received. Who of the several defendants, are personally liable for its payment, and in what order such liability should be enforced, will be stated hereafter. We will first notice some of the- exceptions taken at the trial.

The answer of David was sworn to on the 25th of January, and of Turner on the 24th of May, 1854, and the Judge in refusing to permit an amendment of their answers, in February, 1856, nearly two years after both of them had re-sold their interest "in the. property; made a decision; which is not the subject of an exception.

Many of the matters, offered to be proved on the part of David and Turner, and embraced in their eleven written offers, and the five additional written offers on the part of Turner, except those which they were allowed to prove, constituted matters of defence not alleged in their answers. On that ground alone, they were inadmissible, and whether they should be permitted .to so amend their answers, as to make such evidence admissible -under them, was, in the most favorable view for the defendants that can be taken of such an application, a matter addressed solely to the discretion of the Judge.

An exception to his decision is not reviewable on this appeal. If it was, we should not regard it as erroneous. ■ ■

David sold .the leases and furniture on the 26th of January, 1854, and Turner on the 10th of the following February. The application was made in February, 1856, to amend answers which had been interposed in May, 1854, more than three months after Turner had sold the property, and had ceased to have any interest in it, except to conduct the business, as he says in his answer, as tenant of Wheeler.

The Judge, under such circumstances, might, with great propriety, refuse to permit such a mass of amendments to be made,

p. 597

the matter of most of which, if not of all of them, must have been known to the defendants when they put in their answers, if it can be supposed that the offers were made in the belief, that the defendants had it in their power to establish the facts which they proposed to prove.

The 2d, 3d, 6th, and 9th offers, and parts of some" of the others, were offers of evidence which would contradict the clear legal import of the agreement of the 10th of December, 1853, and the express terms of the agreement of the 26th of January, 1854.

By the agreement of the 10th of December, 1853, David agreed absolutely, and unconditionally, to pay -$3,100 to Ford, for the interest of the latter in the hotel, as set forth in the previous agreements of the 24th of October and 3d of November, and Ford was to retain all the furniture, not included in the schedule, annexed to the mortgage, which had been executed to Jones.

Ford was to be paid this sum at all events, and was to leave the hotel when it was paid. Whether he was at liberty to remain more than three weeks without charge, if not paid within that period, is a different question. The three weeks, within which it was to be paid at all events, expired with the 31st of December, 1853-

David & Turner, in their contracts of the 26th and 28th of January, 1854, seem to have construed the contract of the 10th of December as requiring David to board Ford free of expense, until the $3,100 was paid; David exacted a covenant from Turner to pay Ford that sum, as being due to him by the contract of the 10th of December.

The Court at Special Term, held Ford chargeable with room rent at $17 a week, from the 3d of April, 1854, to the commencement of this action, which was on the 11th of that month.

Although the Court held that Ford had no strict right to be furnished with board and rooms, without charge, after the expiration of three weeks from the 10th of December, 1853, it also held that no abatement from the $3,100 could be allowed for the use of the rooms occupied by Ford, subsequent to the commencement of this action, for the reason, that the enquiry as to the value of board and of the rooms used had been limited to

p. 598

that date on the trial, on the objection taken by the defendant’s counsel “to any proof subsequent to April 11th, 1854, when suit was brought.”

It is too late for the defendants, after having induced the Court at the trial to make that decision, to insist that it was erroneous.

Ho such inquiry could have been allowed as a matter of right, in behalf of Townsend & Johnson. Instead of asserting by answer a right to reduce the claim of Eord to be paid the $3,100 on account of board and rooms furnished to him by David & Turner respectively, they demurred to the original and supplemental complaints, and admitted their material allegations to be true.

The opinion of the Court at Special Term shows, that the Court came to the conclusions, that David acquiesced in the justice of Ford’s claim to board down to the time that David sold to Turner, and that no allowance was made to David for boarding Ford after the three weeks, for the reason that it had been voluntarily furnished, as being Ford’s strict right.

On the same grounds, it was not allowed to Turner for the period between the date of his purchase and the time he notified Ford that he would not board him longer without being paid for it, which was done on the 3d of April, 1854.

The evidence strongly favors the conclusion that the parties adopted and acted upon that construction of the contracts, until Turner notified Ford to the contrary, on the 3d of April, 1854.

David, on selling to Turner, required a covenant from him to pay Ford $3,100: this was deducted from, and was part of the contract price which Turner was to pay for the property; requiring Turner to pay this sum directly to Ford, in satisfaction of a corresponding amount of the contract price, and transferring the property, subject to Ford’s claim upon it for that sum, in connexion with the other facts, might reasonably bring the Court to the conclusion which it formed.

The supplemental complaint states that Townsend bought and took a transfer, “subject to the plaintiff’s lien and claim thereon for the aforesaid sum of $3,100, which the said Townsend assumed and agreed to pay off and discharge, as a part of the purchase money of said property.”

p. 599

Townsend & Johnson, by their demurrers, admit the truth of these allegations.

We think there was no error in not making an allowance to David or Turner, for boarding Ford, prior to the time when it was intimated to him that he must pay board in the future, or leave the premises.

But we are of the opinion that Ford had no strict right to be boarded at the expense of David, or of those succeeding to his interest, after the 31st of December, 1853.

Non-payment of the $3,100, within the three weeks, gave Ford a right to rescind the agreement of the 10th of December, 1853. If he had taken that stand, and had his rights adjusted under the two agreements of a prior date, his condition might not have been as favorable as it would be on being paid the $3,100. But he was not obliged to rescind; and if he did not rescind, he was not obliged to waive his lien or release his rights until the $3,100 was paid. But if he chose to retain the agreement, he would be obliged to look to the property, and such persons as had, or might become liable to pay the $3,100, for payment. All that he could demand, as a strict right, was $3,100 and three weeks board.

The substantive cause of action stated in the complaint, consists of a lien upon the property in question, for the $3,100 and interest, with a right to have it satisfied out of the proceeds of the property, on a sale of it under the judgment of the Court.

If the property shall not produce enough to satisfy the lien, Turner and David are severally liable to make good any deficiency.

In the opinion of the Court, accompanying the decision made in October, 1855, upon the demurrers of Townsend and Johnson to the original and supplemental complaint, no discrimination was made between the several liability of David and Turner to make good any deficiency, and that of Townsend. Although it was stated that Townsend was liable to the plaintiff for such a deficiency, yet a decision of that point was not essential to sustain the order then made. Whether the position of Townsend to Ford, as to personal liability, was different from that of David and Turner, does not appear to have been a subject of consideration.

David contracted with Ford to pay to him the $3,100, and,

p. 600

therefore, was personally liable to Eord to make such payment. Turner promised David, who was thus personally liable to Eord, to pay to Ford the same sum. This promise was based upon a valuable consideration, and is one which Ford can enforce for his own benefit, to make good any deficiency in the proceeds of the property to satisfy Ford’s claim. (Halsey v. Reed, 9 Paige 446 .)

But the promise of Townsend to pay the $3,100, was made to "Wheeler. It is not alleged that Wheeler was ever personally liable for the payment of it, or promised any one, as part of Ms own contract' of purchase, to pay the $3,100, or any part of it.

King v. Whitely, 10 Paige 465 , is in point, and determines that Ford has no personal claim upon Townsend, for any deficiency upon such a state of facts.

In Trotter v. Hughes, 2 Kern. 74, the Court of Appeals, approved of King v. Whitely, as a sound exposition of the law.

: It follows that the judgment must be modified.

We regard the cause of action stated in the complaint, as single. It is a claim to have the $3,100 and interest, or so much of it as may be due", declared a lien upon the property, and ordered, by a judgment of the Court, to be satisfied out of it, by a sale of it, and an application of its proceeds to pay the amount due. . :

The several liabilities of David and Turner, are collateral matters, and may be. enforced to make good any deficiency. (Halsey v. Reed, 9 Paige, 446.)

The judgment should be modified so as to require the proceedings for the appointment of a receiver to be concluded and perfected and the property to be sold by the receiver, and the proceeds applied to satisfy, as far as they will go, the amount due to Ford, and that for any deficiency, execution issue, first against Turner, and on the return of the same unsatisfied, in whole or in part, execution for such deficiency as may then exist, be then issued against David.

As to the questions, whether the action abated, by the transfers made by Ford, pendente lite, or whether it was indispensable, before proceeding to trial, that those who had succeeded to his interests should be made parties, it is sufficient to say that the assignment of the 16th of September, 1854, by Ford to Parmly,

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and by Ford to Winchester on the 17th of October, 1854, and the appointment of Valentine as receiver of the property of Ford, by order of the 21st of May, 1855, did not abate the action. Code, § 121.

By that section of the Code, it was discretionary with the Court to allow the action to proceed in the name of Ford, or to substitute as plaintiffs those to whom his interest had been transferred. After all the present defendants had been made parties, and after all these transfers had been made, a motion was made that such substitution should be ordered, and it was denied.

Instead of appealing from that order to the General Term, all parties acquiesced in it, so far as the record discloses what occurred.

That order, and suffering the time, within which an appeal could be taken from it, to elapse without appealing; preclude the „ defendants from now raising the question whether other parties should have been substituted as plaintiffs.

The Court having determined that the action should proceed in the name of Ford, it necessarily follows, that all proceedings appropriate to enforce the cause of action stated in the complaint, have been, properly and necessarily, taken and prosecuted by him, and in his own name.

The views stated, dispose of the appeal taken by the plaintiff. The judgment must be modified so as to conform to the views hereinbefore expressed, and in all other respects affirmed. Judgment accordingly.

Cases cited

Hoadley v. Cuyler 10 Wend. 593 N.Y. Sup. Ct. p. 594