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Eten v. Luyster

37 N.Y. Super. Ct. 486 5 Jones & S. 486 Court N.Y. Super. Ct. Decision date 1874-06-01 English

Delivered by Sedgwick, J.

Contents

Majority

p. 486
CHARLES ETEN, Plaintiff and Respondent, v. CORNELIUS W. LUYSTER and GEORGE G. GREGORY, Defendants and Appellants.

Headnote

I. LANDLORD and tenant.
3 Summary Proceedings.
Under-tenant.
On a reversal óf a judgment given against an under-tenant, such under-tenant may recover damages under section 49, article 3,. title 10, chapter 8, part 3, Revised Statutes.
A Damages sustained by under-tenant. 1.
1. What will not prevent recovery of.
The voluntary surrender of the term by the lessee from whom he hires to such lessees; lessor will not.
p. 487
■ 31. LESSEE AND HIS TENANT.
1. Surrender by lessee—effect on tenant. a. A lessee can not, by the surrender of bis term to his lessor affect a lease given by him. for the term to another.
1. Therefore, where, by the lease to him, he covenants to give up possession on having two months’ notice, he can not, by any voluntary act, deprive his under-tenant of the benefit of the two months’ notice.
.IH. PLEADING.
1. Damages—averment of, what fboveable under.
1. An averment “to his great damage, viz.: six thousand dollars,” refers to and comprehends all particulars of an alleged trespass set forth in the same paragraph. a. Loss of money.
Where one of the particulars of the trespass there set forth was the conversion of personal property, tht taMng or destruction of money by defendant may be proved under such allegation.
5. Value of the use of premises.
When one of the particulars thus alleged was that defendants “ had thence hitherto deprived and kept the plaintiff • 1 out of his land and premises,” evidence of the value of the use of the premises for that period is admissible. '
IV. EVIDENCE. . '
' 1. Action in which damages are demanded for the removal or destruction of a building claimed to be personal property. a. The way in which the house was attached to the soil may he shown.
V. TRIAL.
1. Election as to elements of damage.-
a. Use of land and value of a house on it.
Where an action is brought to recover damages for depriving the plaintiff of the use of land leased to him, and for the destruction of a house erected by him thereon, which be claims . to own as personal property, he is entitled to have both the value of the use of the land, and the value of the house go to the jury to show them what damage had been suffered.
8. A party is not hound to elect until specifically called on to do so.
Before Monell, Ch. J., and Freedman and Sedgwick, JJ.
Decided June 1, 1874.
p. 488
Appeal from judgment on verdict, and order denying motion on the minutes for new trial
The complaint averred “that at the time of the committing of the wrongs and injuries by the defendants hereinafrer mentioned, the" plaintiff was lawfully possessed, and in the occupation, of the lot of land and premises lSro. 753 Eighth-avenue, in the city of New York, upon which lot of land the plaintiff had before that time erected a building at the cost of one thousand dollars, and had thereon also personal property of great value, to wit: of the value of two thousand dollars.
“And the plaintiff further shows, that on August 1, 1868, proceedings to recover possession of the said lot of land and premises, were made returnable before John A. Stemler, Esq., the justice of the seventh district court in said city, instituted by said defendants against this plaintiff, impleaded with other persons, then m possession of other portions of certain premises, of which the lot of land and premises aforesaid formed part thereof.
“Thatin said proceedings, the said Justice Stemler rendered a judgment whereby he awarded to said defendants the possession of the premises mentioned in said proceedings, including the lot of land and premises occupied and possessed by this plaintiff as aforesaid and this plaintiff, by means thereof, was dispossessed and put out of the said lot of land and premises by the defendants, who, with force and arms, ejected the plaintiff therefrom, and then and there pulled down and destroyed the said building so erected and owned by the plaintiff, as aforesaid; and then and there took and converted the said personal property of the plaintiff to their own use, and has from thence hitherto deprived and kept the plaintiff out of his property and lot of land and premises ; and he has by means thereof
p. 489
been prevented from carrying on and conducting liis business of milk dealer in and upon said premises, by which means he has been deprived of great gains and profits which he otherwise would have accumulated out of his said business, to his great damage, viz.: six thousand dollars, and his ¿said business broken up.
“ That the proceedings and judgment of the said Justice Stemler so as aforesaid rendered by him, were by this plaintiff removed to the supreme court, wherein such proceedings were afterward had that the said supreme court on November 10, 1868, by the order of the said court then and there made, reversed the said judgment and proceedings of the said Justice Stemler, and the same were held for naught and adjudged void and of no effect.
“ Wherefore the plaintiff demands judgment for the sum of six thousand dollars besides costs.”
By the answer defendants averred:
First. That they deny each any every allegation in the complaint herein contained, except as hereinafter admitted.
” Second. That on or about July 16, 1868, one John ' Milhau and his wife, by full covenant warrantee deed, free from all incumbrances and free from any lien, under their hands and seals, bearing date on that day, conveyed to the defendants the premises mentioned in the complaint with others, which deed was recorded in the office of register of the city and county of New York on the same day, and to which the defendants, for greater certainty, pray leave to refer.
Third. That on July 29, 1868, proceedings to recover possession of said premises were instituted as alleged in the complaint; that the plaintiff herein was included therein and duly served, and the justice before whom the same was made returnable had jurisdiction of the subject matter and -of the plaintiff herein, and that the said justice rendered judgment as
p. 490
alleged in the complaint. That iñ pursuance thereof, a warrant was issued by said justice to an officer to remove the plaintiff from said premises, who executed the same.
Fourth. That the said proceedings of said justice were removed into the supreme court by the plaintiff ; and it there appearing to said court that, the said justice had erred in his ruling as matter of law, that the plaintiff, as under-tenant, could not file a counter affidavit; on that ground only, the said court reversed the proceedings.
Wherefore defendants demand that the complaint be dismissed with costs.
On the trial it appeared that on March 12, 1868, one Milhau, by his agent, leased to John Morrison, for the term of one year, from May 1, 1868, certain premises, including the lot in question. The lease contained a, clause of re-entry in case of default being made in any of the covenants therein contained, and also contained the following clause : 1 ‘And the said party of the second part also agrees and covenants to vacate the said house and premises on having two months’ notice in writing, and being paid two hundred dollars as an equivalent for moving and giving up this lease.”
That in April, 1868, Morrison sub-let the lot in question to the plaintiff for one year from May 1, 1868; that plaintiff erected a frame building on the lot; that-in , 1868, B. P. Fairchild having contracted, to purchase the premises from Milhau, Morrison, in consideration of three hundred dollars, voluntarily executed, under seal, an instrument whereby ■ he canceled the lease to him, and waived any further notice, and agreed to vacate the premises on or before , 1868? and to give full possession thereof; that on July 16, 1868, said Milhau, at the direction of said Fair-child conveyed said _ premises to the defendants herein ; that on July 29, 1868, the defendants herein
p. 491
commenced summary proceedings, before one of the justices of .the city of Hew York, against said Morrison and this plaintiff and others to disposess them from said premises, and such proceedings were had therein that judgment of dispossession was rendered August 1, 1868, and on that day a warrant was issued, under which plaintiff was removed from said premises ; this plaintiff sued out a certiorari from the supreme court, and that court reversed the judgment below.
There was evidence tending to show that Morrison, at the time he sub-let to the plaintiff, told him that he would have to move when he (Morrison) had to, and that every body would have to move when the property was sold; that that was what the lease to him (Morrison) said; that Morrison, in June, on the Friday after he executed the surrender, told plaintiff that he would have to move, but that he could stay two months.
■ In the course of the trial the following testimony was given by plaintiff, questions asked him, objections raised, rulings made, and exceptions taken:
“I had my money in the house that I should have paid my debts with, which was stolen away.
“ Q. State what money you had there ?
Objected to. Objection overruled, and defendants excepted. “A. Two thousand dollars.
‘•Q. What was the use of these premises worth from the time you were dispossessed to the year ending May 1, 1869 ?
Objected to, on the grounds that there is no allegation of this kind in the complaint; and that the plaintiff claims the value of the building, and can not claim for the building and the rent also.
Objection overruled, and defendants’ counsel excepted. “A. It was a good deal. Fifty dollars a month and more.”
p. 492
And the following questions were put to a witness called in behalf of plaintiff; objections raised thereto, rulings made, and exceptions taken:
“ Q. What was the value of that house in August, 1868 ?
Objected to, on the ground that the plaintiff has not elected to claim the value of the house, but has claimed for loss of rent. Objection overruled. Exception. “A. It was worth one thousand and three dollars. I'have made an estimate of what it was worth. That is the way I came at that value.
“ Q. Was that building on the ground, or did it have a foundation going into the ground ?
Objected to as irrelevant and incompetent. Admitted, and exception. “A. It was on the ground.
“ Q.. Could the building have been removed without injury to the lot ?
“Yes, sir.”
At the close of the testimony on both sides, defendants’ counsel moved the court to direct a verdict for the defendants on the evidence, which motion was denied, and an exception taken.
Defendants’ counsel moved the court to instruct the jury that the plaintiff was entitled to nominal damages only, which motion was denied, and an exception taken.
The judge, among other things, charged the jury that the right of sixty days’ notice reserved to Morrison, in the lease to him, was a right that enured to the benefit of plaintiff as matter of law, to which charge defendants excepted ; he also charged that there was a tenancy up to the time.of removal of plaintiff’s effects,, under the warrant, to which charge defendants excepted. He also charged that the plaintiff could only be removed from the premises by due course of law, to which charge defendants excepted.
The defendants’ counsel requested the court • to
p. 493
charge, that the plaintiff must elect whether he will claim for the building, or rent; and that he can not require the jury to determine for him whether he is to. have one or the other.
The request was refused, and defendants’ counsel excepted.
The jury rendered a verdict for plaintiff for one thousand six hundred and fifty-one dollars and thirty-three cents.
Defendants' moved for a new trial on the judge’s minutes, which motion was denied, and an exception taken.
From the judgment entered on the verdict, and the denial of the motion for a new trial, defendants appeal.
• Arnoux, Hitch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel, for appellants, urged: 1.
The cause of action set forth in the complaint herein was solely injury to business, whereby the plaintiff had been deprived of great gains and profits, and his business broken up to his damage, six-thousand dollars. 1. The legal construction of the complaint will bear no other meaning. All that is stated about the destruction of the building, and the conversion of property, is in aggravation of the loss sustained by breaking up the business, and not as distinct elements of damage. The judge, therefore, erred when the cause came on for trial, in refusing to hold that upon the pleadings, the issue presented is simply damages to ■business by reason of the dispossession (James v. McKennan, 6 Johns. 563 ; Ferguson v. Ferguson, 2 N. Y. 360 ; People v. Ryder, 12 Id. 437 ; Wright v. Delafield, 25 Id. 266). It will be remembered, that the action is not an ordinary action under the code, but an action on the case under the statute (2 Rev. Stat. p. 516, § 49). 2. Clearly, the loss of money could not have been proved under the pleadings. The allegation of loss of
p. 494
personal property meant furniture and chattels only. ' In actions for the recovery of special damage it is essential to the validity of the declaration to show the damage particularly (Butler v. Kent, 19 Johns. 228 ; Dumont v. Smith, 4 Denio, 322 ; Westwood v. Cowne, 1 Stark. N. P. C. 172). 3. Even if the complaint should be held sufficient to allow the plaintiff to recover for the value of the building, the conver- . sion of the property, and the loss to the business, it did not warrant the admission of evidence as to the value of the use of the premises. When such evidence was offered on the trial it was specifically objected to, on the ground that there was no allegation of that kind in the complaint. The objection was overruled, and the defendants’ counsel excepted. This ruling was erroneous.
II. Upon the surrender to the defendants by Morrison of his term and right to notice, and upon their purchase from Milhau of the fee, the defendants became entitled to the immediate possession of the premises in question. The term of the plaintiff was ended, and he himself was a trespásser. 1. The right . reserved in the lease to Morrison to have sixty days’ notice of the expiration of his term, was a personal covenant with him, and did not run with the land. It was error on the part of the judge to charge that the right to sixty days’ notice reserved to Morrison, in his lease, of right belonged to the plaintiff, whether he had knowledge of it at the time or not. The charge is contrary to the law as laid down in the court of appeals, where it has been held that between the lessor and under-tenant there is neither privity of estate nor privity of contract (McFarland v. Watson, 3 N. Y. 286 ). 2. The uncontradicted testimony of Morrison is, that he never communicated to the plaintiff his right to the .sixty days’ notice, and that he did make his lease to him on the sole condition that it should terminate on
p. 495
the sale of the property. The property having been sold, the plaintiff’s tenancy, therefore, had terminated; “ The party who remains upon the land of another against his will, is there prima facie against right, and is bound to show circumstances which make such • possession lawful” (Hayling v. Oakley, 8 Exch. 545). “ The only safe and just rule, I believe to be the one established by authority, that the tenant holds over his term at his peril, and the owner of the term may treat him as a trespasser ” (Schuyler v. Smith, 51 N. Y. 309 ; Conway v. Starkweather, 1 Denio, 113 ; Rowan v. Lytle, 11 Wend. 616 ). To the same effect are the following: Allen v. Jacquish, 21 Wend. 628 -631 ; McKay v. Mumford, 10 Id. 353 ; Garner v. Hannah, 6 Duer, 271 ; Smith, v. Littlefield, 51 N. Y. 541 ; People y. Schack, 48 Barb. 551 ; Parmlee v. O. & S. R. R., 6 N. Y. 74 -81; Nichols v. Williams, 8 Cow. 13 -15; Witt v. Mayor, &c., 6 Robl. 449; Danforth v. Sargeant, 14 Mass. 491 . 3. The plaintiff being a trespasser, and the defendants having the right to the immdeiate possession, they were entitled to enter, and eject the plaintiff without being liable to him in damages therefor (Jackson v. Farmer, 9 Wend. 201 ; Hyatt v. Wood, 4 Johns. 150 ; Ives v. Ives, 13 Id. 235 ; 3 Black. Com. 174 ; Taylor on Landl. and T. §§ 523, 531-2; Livingston v. Tanner, 14 N. Y. 66 ; Wilde v. Cantillon, 1 Johns. Cas. 123 ; Jackson v. Morse, 16 Johns. 200 ; Curl v. Lowell, 19 Pick. 25 ; and see Sampson v. Henry, 13 Id. 36 ; Mugford v. Richardson, 16 Allen, 76 ; Minor v. Stevens, 1 Cush. 485 ; Meader v. Stone, 7 Metc. 147 ; Curtis v. Galvin, 1 Allen, 215 ; Walton v. File, 1 Dev. & B. 567 ; Overdeer v. Lewis, 1 W. & S. 90 ; Frible v. Frame, 7 J. J. Marsh, 599 ; Johnson v. Hannahan, 1 Strobhart, 313 ; Burling v. Read, 11 Q. B. 904). 4, The defendants are not precluded by summary proceedings from asserting this right (Gault v. Jenkins. 12 Wend. 488 ). In this ease,
p. 496
the officers executed an unlawful warrant under, the direction of the landlord. The court held, “If the defendants had acted under any other authority than the warrant, they would have been trespassers ; but under the orders of the landlord they were protected. The procuring the warrant did not deprive him of the power which he had without the warrant, nor did it prevent him conferring authority upon the defendants ” (Frazer v. Freeman, 43 N. Y. 566 ).
III. For the errors committed during the progress' of the trial, material to the case,' the judgment should be reversed. Upon' the trial, the court erred in permitting the plaintiff to claim the value of the building and the lease for sixty days’ rent. The plaintiff was bound to elect which of the two lie would claim ; he had no right to both. The court erred in permitting evidence to be given of the character of the building. It was placed upon the ground, but had foundations going into the ground. It was not a fixture, and was not governed by the law pertaining to fixtures. It was a house erected upon the land, and became, by its erection a part of the freehold, and passed to the defendants by the conveyance to them of the premises without reservation.
W. C. Carpenter, attorney, and James Clark, of counsel, for respondent, urged : I.
The reversal, on • certiorari, of the proceedings under which the plaintiff was dispossessed, by the terms of the statute, gave him an absolute right to recover of the defendants ‘‘ any damages he may hace sustained by reason of such proceedings, with costs ” (2 Rev. Stat. Edm. Ed. p. 533, § 49).
II. The ground of reversal is wholly immaterial, and in no way affects plaintiff’s right to recover (Manuscript opinion of Earl, commissioner, in" Heyden v.
p. 497
The Florence Sewing Machine Co. recently decided by the com. of appeals.
III. The reversal of the proceedings under which the dispossessory warrant issued, rendered the warrant nugatory, and placed those acting -under it, and all in complicity with them, in the attitude of trespassers by force.
IY. Even had plaintiff’s tenancy in fact expired, defendants had no right to dispossess him by force (Flaherty v. Andrews, 2 E. D. Smith, 529 ; Jackson v. Ellsworth, 20 Johns. 180 ).
y. But plaintiff’s tenancy had not expired at the time of his dispossession by defendants. 1. The premises had been let to him for a year from May 1, 1888. 2. Plaintiff being in actual possession of the premises at the date of the deed from Milhau (the owner of the fee) to the defendants, the latter were chargeable with notice of plaintiff’s rights, and took subject to them (Tuttle v. Jackson, 6 Wend. 213 ; Grimstone v. Carter, 3 Paige, 421; Wright v. Douglass, 10 Barb. 97 ; Williams v. Birbeck, Hoff. 859; Gouverneur v. Lynch, 2 Paige, 300; Bank of Orleans v. Flagg, 3 Barb. Ch. 316 ). 3. The clause in the lease from Milhau to Morrison, (plaintiff’s immediate lessor), entitling Morrison to two months’ notice in order to terminate his tenancy, enured to the benefit of the plaintiff; and, after Morrison’s lease to him, his tenancy could not be terminated before the expiration of the year which it had to run, without the notice to which his landlord was entitled. This notice, after plaintiff’s rights had become fixed by his lease, could not be waived to his prejudice by any act of his landlord.
yi. The request of defendants’ counsel that the court should adjudge that the only issue raised by the pleadings is as to the damage to plaintiff’s business, was properly refused. 1. The words, to his great damage, viz., six thousand dollar sJ relate to all the
p. 498
wrongful acts previously recited in the complaint. 2. The conclusion of the complaint, “Wherefore the plaintiff demands judgment for the sum of six thousand dollars,” &c., implies that that sum is demanded by reason of all the matters previously stated.

The plaintiff has his action of trespass on the case by force of section 49, of the article entitled “.summary proceedings, to recover the possession of land in other cases” (2 Rev. Stat. Edm. Ed. p. 533). The section literally says, if the proceedings shall be reversed or quashed, the tenant or lessee may recover against the person making application for removal any damages he may have sustained by reason of such proceeding, in an action on the case. The plaintiff is an under-tenant. As such, however, he is entitled to the same protection as his landlord the tenant is, against an illegal attempt to remove him from land of which he is in possession. The word tenant, as used, does not necessarily negative an under-tenant being included in its meaning. An under-tenant is a tenant of a certain kind. There is nothing to indicate that the section meant to distinguish tenant or lessee from under-tenant or sub-lessee. As used, the words were evidently employed to designate the party to the proceeding that might have an action on reversal. Beginning the section with, either party that prevails, in case of an application, may have an action for costs, there was in proceeding a necessity of describing the party against whom the proceeding was taken, as the party that on reversal might have an action on the case. That description was sufficiently given by saying tenant or lessee. The proceedings were neither in an action nor on a writ, and the party defendant had no proper title. \ The same use of the word tenant occurs in section 29. There it evidently refers to tenant, lessee,.

p. 499
assigns, under-tenant, or legal representative of such tenant or lessee, a.s particularized in section 28.

This construction was taken as granted to be true, in Hayden v. Florence Sewing Machine Company, in the commission of appeals (MSS. opinion). Indeed, I am not certain that the learned counsel for the appellant disputed this in his able argument.

He did take the position, that, if irrespective of the warrant, the defendants had a right to enter arid remove the plaintiff as a trespasser or intruder, the reversal of the proceedings did not prevent his lawfully exercising that right, although he also used the warrant as his authority (Gault v. Jenkins, 12 Wend. 488 ). We need go no further here than to look into the facts as to the plaintiff being a trespasser.

By written lease, Morrison hired, in March, 1868, three lots, of which the locus in quo was a part, for one year from May 1,1868. He agreed in it to “ vacate the said house and premises on having two months’ notice in writing, and being paid two hundred dollars as an equivalent for moving and giving up this lease.” He further agreed, that “if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter said premises and to remove all persons therefrom.”

Before May 1, 1868, Morrison let the lot (of which the plaintiff was afterward dispossessed by summary proceedings), to the plaintiff, for one year from May 1, 3868.

About July 26, 1868, Morrison made an agreement in writing with the owner of the fee (it having in the meantime been conveyed) in consideration of three hundred dollars. The tenor of the material part is : “ I hereby cancel said lease or agreement, and waive any further notice, and agree to vacate said premises on or before July 1 ( ), A. D., 1868, and give the full possession thereof.”

p. 500
On the trial, Morrison swore that about the time of making this, lie told the plaintiff he must move in two months. He also swore, that at the time of giving the one year lease to plaintiff, he told him that when he, Morrison, had to move, the plaintiff had to move. Again that he told him-“what the lease said.” The jury, if they had not relied on the plaintiff’s testimony, would, I think, by the weight of the evidence, have been bound to find that Morrison, at the time of letting to the plaintiff, informed him of the covenant of the lease as to vacating the premises.

Morrison could not, by 1ns cancellation of the lease, annul the lease lie had previously made to the plaintiff 14 Co. 429, Davenport’s case, and note B). The plaintiff’s interest in the land remained unimpaired, subject, we may say, to the terms and conditions of the lease to Morrison. Morrison, by that, xvas only bound to vacate upon two months’ notice in writing. Even if he had had this notice, and that time had elapsed, the term was not absolutely or ipso facto -gone, but continued until the landlord otherwise elected. The words used permit the landlord to enter, but do not provide for the term ending, at all events, upon breach of the covenant (Beach v. Nixon, 9 N. Y. 37 ). These provisions are strictly construed. Morrison had not received the notice in writing provided, nor even had two months passed from the time he cancelled his lease. Therefore, the plaintiff, at the time he was dispossessed, was lawfully in possession, his term not-having expired. The defendants had no rights against him as a trespasser.

As to the exceptions based upon the form of the complaint in its averments of damage, we must hold that the words “to his great damage, viz: six thousand dollars, and his said business broken up,” comprehensively referred to all the particulars of alleged trespass set forth in the same paragraph. The plaintiff had a

p. 501
right to prove these particulars, so far as it was shown they were parts of the trespass complained of. Part of this was an alleged loss of money suffered by the plaintiff. There was a specific objection taken that this ioss being in the nature of special damage, the complaint should have specially alleged it. Such is the rule where the loss is not the natural and direct consequence of the trespass ; but in the present case, the trespass itself was alleged to be, in part, the taking and conversion of “ personal propeity of great value, to wit: two thousand dollars.” Money in bills is certainly personal property. If there was uncertainty in the averment, and the defendantueeded greater particularity to enable him to defend, the code provides that a motion to compel certainty might be made.

On the trial no objection was made that it did not appear that the taking of the money was either by the pelendants or their authority, or that it was not a part of dispossessing under the warrant. The objection was that it was not competent to prove under the complaint the taking of the money. As the complaint alleged that personal property was wrongfully taken, I think the plaintiff had a right to give the testimony.

The question, “ what was the use of the premises worth from the time you were dispossessed to the year ending May 1, 1869 ?” was objected to, on the ground, first, there is no allegation of this kind in the complaint; second, that the plaintiff' claims the value of the building and the rent also. As to the first ground, the complaint alleged that the defendants had thence hitherto deprived and kept the plaintiff out of his land and premises.” As to the second ground, the plaintiff in this action was entitled to all the facts going to show the jury what damage had been suffered. The value of the building was one fact. The value of the use and occupation was another. Because the plaintiff gave the two in evidence, he did

p. 502
not necessarily claim that he was entitled to the whole of both. Indeed, if there were any inconsistency in the claims, he was not bound to put himself on one or the other until he was called upon to elect. This demand, however, was not made. In the charge, the judge presented the matter in such a way that the defendants were not in danger of having double damages given against them. .

On this same point, I do not think the eleventh request to charge was correct. It was “that the plaintiff must elect whether he will claim for the building or rent, and that he can not require the jury to determine for him whether he is to have one or the other.” . I do not think if it were a case to put the plaintiff to an election, that he was bound to elect, until specifically called upon to do it. It was the duty of the jury to give damages, according to the facts in evidence, under the charge of the court.

It was competent to give evidence as to the way in which the house was placed on the soil, at least to-show that no injury would be done to the freehold by its removal. The court left it to the jury in a correct manner to determine if the house were the plaintiff’s or not (Tifft v. Herton, 53 N. Y. 377 ; Voorhis v. McGinnis, 48 N. Y. 278 ; Loughran v. Ross, 45 N. Y. 792 ). In any view, the defendants were not injured by proof of the fact.

There were several minor exceptions, not calling for detailed attention, which I think should not be sustained.

On the whole case, I am of opinion that the judgwwat should be affirmed, with costs, to respondent.

Momell, Ch. J., and Fbeemiatt J., concurred.

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