(LAW S^P^ &C0. •* 1^ liAW '45 JOHN ST (new vork. KF^y 5/ 90 (90mf U ICatu i>rlynoI Slibratg Cornell University Library KFN5170.D26 A hand book on the marketability of titl 3 1924 022 802 908 A Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022802908 A HAND BOOK ON THE MARKETABILITY OF TITLE IN THE STATE OF NEW YORK WITH Tables of Cases Cited, Statutes Construed, Wills Construed and Localities Affected HORACE a!^ DAVIS (Of the New York Bar.) AtTTHOB OF The Jtjdiceal Veto. New York: Bakeu, Voorhis & Co. 1916 Copyright, 1916, By HORACE A. DAVIS WM. EOYD FEINTING CO., INC., ALBANY, N. Y. PREFACE This treatise is intended as a handbook for every New York practitioner required to pass upon Market- ability of Title. Its aim is to present in practical form the law, the whole law and nothing but the law of that single narrow topic. The marketability cases are not collected in the digests under any single heading or group of headings. (Consequently to insure thoroughness it has been nec- essary to plod through all the numerous New York re- ports page by page. In the course of this exhaustive examination of cases, many decisions have been found of which there is no published record except the name of the case. These have been included with the opin- ion cases without special comment. In a large majority of the recent cases in the court of appeals and appellate division the original record has been examined. In not a few cases some varia- tion has been found between the record and the state- ment or opinion. In such cases the record has always' been accepted as the test of what the case decides. Frequently the discrepancy is slight or unimportant from a marketability point of view, and the facts as found in the record are stated in the text without com- ment. While the author is very anxious to make this treatise accurate to the last degree, and will welcome every criticism and correction, he suggests that the original record should always be consulted when his statement of any case varies frora the official report. Cases decided without opinion have proved a dis- (iii) iv Peeface. turbing factor. They contain an undue proportion of decisions at variance with the accepted rules. It might be better if such cases were suppressed alto- gether. But they are not suppressed; they are public records, indexed on a par with other cases and occas- ionally referred to by the judges themselves. Thus they become part of the body of the law, distinguished only by being less accessible than the opinion cases — and somewhat less intelligible. They are accepted as such in this treatise and cited as on an equal footing with the opinion cases except where there is a conflict of decision. Whenever that occurs attention is called to the unreported cases and an attempt is made to, as- sign to each its proper weight in establishing the law. The real difficulty has been, however, not to find the cases, but to exclude those not strictly pertinent. The law of marketability is wholly and essentially adjec- ,tive law. It does not contain a single substantive precept of the law of real property; but it touches al- most every substantive rule at many different angles. The consequence is an almost irresistible temptation to discuss the substantive law — or in other words develop the text into a cursory treatise on the law of real estate. This undesirable and unscientific devel- opment has been most carefully avoided. A novel feature is a table of localities affected. Whether this proves of practical value the author would much like to know. Letters from practitioners will be appreciated. The philosophy of Marketability law is simple and circumscribed. The cases at variance with the fun- damental rule have not often caused serious disturb- ance in the development of a coherent body of law. The author's effort has been less to criticise the decisions than to collect scattered and hidden cases and present them to the profession as plainly and conveniently as Preface. v possible; to keep an unwavering line of vision, and to present each case fully and from every angle at whith it touches that line. Every suggestion for adding practical value to the book will be welcomed. The author hopes that his meticulous pains to make it thorough and accurate have given it scientific value; they cannot possibly be compensated materially. HORACE A. DAVIS. September, 1916. TABLE OF CONTENTS. CHAPTER I. Inteoduction. Scope of Subject: Page § 1. Legal 1 I 2. Physical 2 CHAPTER II. General Peinciples. 1. Definition: § 10. Point of View 4 Judicial Opinions: § 11. Marketability 5 § 12. Reasonable Doubt 8 § 13. Good; Satisfactory; Clear Record Title. 10 i 14. First Class ; Perfect 11 § 15. Approval; Insurable 11 2. Doubtful Questions of Fact: § 16. Test 13 § 17. Possibility ' 15 Uncertainty : § 18. Insufficient Evidence 18 § 19. Parol Evidence 20 3. Doubtful Questions of Law: When Decided : § 20. Theory 22 § 21. Pure Question of Law 24 § 22. Interests Not Represented 26 § 23. Judicial Discretion 28 Elements of Doubt: § 24. Novel Question 28 § 25. Different Judicial Opinions 29 26. 4. Trifling Defect 31 27. 5. Stare Decisis 33 (Yii) viii Table of Contents. Page § 28. 6. Public Officer 35 7. Public Policy: § 29. Foreign Corporation 35 § 30. Highway 36 § 31. Husband and Wife 36 § 32. Remaindermen 36 § 33. 8. Constitutional Law 37 § 34. Construction 38 § 35. Special Sales 38 Particular Clauses: § 36. Local and Private Acts 39 § 37. Due Process of Law 39 § 38. Obligation of Contracts 40 § 39. Taxes and Assessments 40 § 40. Highways 41 § 41. Municipal Grants 41 CHAPTER III. Pbivate Saijis. 1. Contract: Intent : § 50. Generally 42 § 51. Divisible Contract 43 § 52. Knowledge 43 Implied Warranty: § 53. Fee 44 § 54. Lease 45 § 55. Right, Title and Interest 46 I 56. Performance 46 i 57. Merger 48 § 58. Waiver 49 2. Covenants of the Contract: § 59. Independent 49 § 60. Mutual 51 3. Tender: When Necessary: § 61. Vendor 52 § 62. Vendee 54 When Excused: ^ § 63. Vendor 56 § 64. Vendee 56 Sufficiency of: § 65. Vendor 59 § 66. Vendee 61 S 67. Vendee's Lien 61 Table of Contents. ix Page 4. Readiness: Vendor's Title: § 68. At Law 61 § 69. In Equity 62 § 70. Vendee 63 § 71. Demand 64 5. Death of Contracting Party: § 72. Vendor 65 § 73. Vendee 66 § 74. Escrow 67 75. 6. Auction 67 76. 7. Voluntary Petition 68 CHAPTER IV. Judicial and Statutory Sales. 1. Judicial Sale: § 80. Title Offered 69 § 81. Protection to Purchaser 73 § 82. Conduct of Sale 74 § 83. Appeal Pending 75 § 84. Exceptions 75 § 85. Demand 76 § 86. Conveyance 76 § 87. Revenue Stamps 76 88. 2. Various Actions and Proceedings 76 3. Service of Process: Persons Non Sui Juris: § 89. Incompetents 78 § 90. Infants 79 Unknown Persons: § 91. Heirs Presumptive 81 § 92. Description 82 Substituted , Service : § 93. When Authorized 84 § 94. Persons Tfon Sui Juris 85 § 95. Formalities 85 § 96. Judgment on 85 Service by Publication: § 97. Effect of 85 § 98. Jurisdiction 86 § 99. Absence 86 § 100. Service Outside the State 86 § 101. Unknown Residence 87 § 102. Non-Residence 88 X Table of Contents. Page § 103. Due Diligence ■ ■ • • ^^ § 104. Information and Belief ^2 § 105. Sufficiency of Affidavits ^3 § 106. Order 94 § 107. Mailing 96 § 108. Publication 97 § 109. Notice 97 § 110. Summons 98 § 111. 4. Procedure (AflFecting Titles) 99 § 112. Jurisdiction • ■ . 99 Parties : I 113. Necessary 100 § 114. Representation 100 § lis. State 101 § 116. Attorneys 102 Lis Pendens: § 117. Effect 102 § 118. Time 103 § 119. Form 103 § 120. Filing : . 104 Process and Appearance: § 121. Form 104 § 122. Names 105 § 123. Amendment 105 I 124. Appearance 105 Pleadings : § 125. Complaint 106 § 126. Answer 106 Guardian Ad Litem: § 127. Service of Infants 107 § 128. Application 107 § 129. Qualifications and Consent 108 § 130. Order 109 § 131. Answer 109 Interlocutory Regulations : § 132. Amendment 109 § 133. Notice 110 § 134. Record Ill I 135. Costs ]11 Judgment and Decree: § 136. Entry 112 § 137. Contents 112 Sale: § 138. Notice 113 § 139. Sales Officer 114 § 140. Terms 114 Table of Contents. xi Page § 141. Liens 115 § 142. Adjournment . 115 § 143. Parcels 1 15 § 144. Purchaser 116 § 145. Report and Distribution 116 § 146. Abatement and Revivor 117 § 147. Rules of Practice 118 5. Partition: § 148. Action 119 Parties : § 149. A. Plaintiff 119 § 150. B. Defendant. — Representation 120 § 151. Heirs 121 § 152. Remaindermen 121 § 153. Lienors 122 § 154. Executor and Administrator 122 § 155. Tenant 122 § 156. Equities 122 Guardian Ad Litem: § 157. Order 122 § 158. Bond 123 § 159. Liens 123 6. Foreclosure of Mortgage and Tax Lien by Action: § 160. What Mortgage Includes 124 ' § 161. Jurisdiction 124 Parties : § 162. A. Plaintiff " 125 § 163. B. Defendant — Owner of Equity and Those Claiming under Him 125 § 164. Subsequent Lienors 127 § 165. Prior Lienors 128 § 166. Mortgagor 128 § 167. Tenant 129 § 168. State 129 § 169. Reference 129 § 170. Liens 130 § 171. Sale 131 § 172. Tax Foreclosure 131 7. Foreclosure by Advertisement: § 173. Mortgagor's Representative 131 § 174. Sale in Parcels 131 § 175. 8. Foreclosure of Mechanic's Lien 132 § 176. 9. Admeasurement of Dower 132 § -177. 10. Judgment Creditor's Suit 133 11. Administrator's and Executor's Proceedings: § 178. Generally 133 xii -Table op Contents. Page § 179. Jurisdiction 133 § 180. Foreign Will 135 Petition : § 181. Who May Bring 135 § 182. Time 135 § 183. Contents 136 Citation : § 184. Parties 136 § 185. Contents 137 § 186. Publication 138 § 187. Special Guardian 138 § 188. Sale 139 § 189. Bond 139 § 190. Costa 139 12. Infant's Proceedings: § 191. Jurisdiction 139 § 192. Grounds 140 § 193. Who May Bring 140 Petition : § 194. Contents 141 § 195. Execution 141 Special Guardian: § 196. Appointment 141 § 197. Bond 141 § 198. Contract 142 § 199. Referee 142 § 200. Exchange 142 § 201. Proceeds 143 13. Trustee's Proceedings: § 202. Jurisdiction 143 § 203. Parties 144 § 204. Grounds 144 § 205. 14. Lunatic's Proceedings 144 § 206. 15. Supplementary Proceedings 145 16. Assignment for Benefit of Creditors: § 207. Validity 145 § 208. Title 145 § 209. Termination of Trust 146 § 210. Eevesting of Title 146 17. Bankruptcy: § 211. Proceedings 147 § 212. Judgments 147 § 213. Assignee 148 § 214. Sales .148 § 215. Adverse Claims 149 Table of Contents. xiii Page 216. 18. Liquidation of Bank 149 217. 19. Action to Enforce Tenement House Law 149 20. Execution Sale: § 218. What is Sold 150 § 219. Proceedings 150 § 220. Deed 150 § 221. Proof 151 21. Tax Sales: § 222. Wliat Passes 151 i 223. Demand 15a Notice to Redeem: § 224. Sufficiency 15* § 225. Proof 154 § 226. Treasurer's Certificate 154- § 227. Owner 155 § 228. Vendee 155 CHAPTER V. Public Grants. 1. Grants by the State: § 230. Patents 156 Legislative Acts: § 231. Bounty Lands 157 § 232. Salt Lease 157 § 233. Escheat Acts 157 234. 2. Municipal Corporations 157 CHAPTER VI. Devolution of Title Not Undeb Contract. 240j 1. Condemnation 159 241. 2. Transfer by Statute 160 242. 3. Escheat 160 243. 4. Gift 161 244. 5. Merger 161 6. Descent: § 245. Heirs 162 § 246. Half Blood 163 § 247. Creditors 163 7. Devise: § 248. Creditors 164 § 249. Probate 165 § 250. After Acquired Realty 165 § 251. After Born Children 166 xiv Table of Contents. Page § 252. Lapsed Devise 166 § 253. Void Devise 167 § 254. Charge of Legacies 167 § 255. Wills 167 § 256. Execution 168 § 257. Description 168 § 258. Particular Wills 168 § 259. Executory Devise 170 I 260. Election 170 § 261. 8. Equitable Conversion 171 9. Power of Sale: Construction : § 262. When Construed 171 § 263. How Construed 172 § 264. Matters Outside the Will 175 § 265. Purpose . . .' 176 § 266. Implied Power 179 § 267-. Charges 180 § 268. Equitable Conversion 182 § 269. Discretionary Power 183 § 270. Power in Trust 184 § 271. Invalid Provisions 184 § 272. Sale . . 185 Exercise : § 273. Survival 186 § 274. Failure of Donee to Act 188 § 275. Administrator with the Will Annexed 191 § 276. Substituted Trustee . . . .^ 193 § 277. Good Faith 194 I 278. Reinvestment 194 § 279. How Executed 195 § 280. Consent 196 § 281. Consideration ,. . 197 I § 282. Reconversion 198 «• § 283. Termination 199 § 284. Application of Proceeds 199 9. Powers Other Than Sale: § 285. Power of Lease 200 § 286. Power of Mortgage 200 § 287. Power of Devise 201 § 288. Power of Appointment 203 § 289. Power of Conveyance 204 10. Trusts: § 290. Creation .' 204 § 291. Precatory 205 § 292. Undefined 205 Table of Contents. xv Page Void: § 293. Secret ' 206 § 294. Uncertain 206 § 295. Perpetuities 206 § 296. Not Within tlie Statute 206 § 297. Passive 207 § 298. Accumulation 207 § 299. Eeligious and Charitable Purposes 208 § 300. Trustee 208 § 301. Power in Trust 209 § 302. Termination 210 11. Remainder: § 303. Vested 211 § 304. Contingent 213 § 305. Executory Devise 216 \ § 306. Subject to be Divested 217 § 307. Subject to Open 219 § 308. Estate Tail 219 § 309. Issue and Heirs .' 220 § 310. Death Without Issue 220 § 311. After Born 221 § '312. Equitable Conversion 223 § 313. Rule in Shelley's Case 223 § 314. Life Estate with Power to Devise 224 § 315. Void 224 § 316. Particular Devises 224 12. Perpetuities: § 317. Term of Years 226 § 318. Lives 227 § 319. Survivors 229 § 320. Effect 230 § 321. Personality 231 13. Adverse Possession: § 322. General Rule 231 § 323. Time 232 § 324. Entry 233 § 325. Claimants 234 § 326. Technical Defects 236 § 327. Evidence 237 § 328. Hostile Claim 239 § 329. Practice 240 14. Practical Location: § 330. What Constitutes 241 § 331. Discrepancies in Measurement 242 § 332. Common Ownership 244 ivi Table of Contents. CHAPTER VII. Estates. A. Estates as Determined by Status of Owners: 1. Natural Persons and Their Holdings: Page § 340. Insanity 245 § 341. Infancy 246 Marriage: § 342. A. Husband 247 § 343. Curtesy 247 § 344. B. Wife 247 § 345. Dower 248 § 346. Inchoate 249 § 347. Release 250 § 348. Election 251 § 349. Extinguishment 252 § 350. Vendee 252 § 351. C. Separation 253 § 352. Divorce 253 § 353. Aliens 253 § 354. Unborn Persons 255 § 355. Mortgagees in Possession 255 § 356. Remaindermen 255 § 357. Tenants in Common 256 § 358. Joint Tenants 256 § 359. Tenants by the Entirety 257 2. Artificial Persons: § 360. Designation 257 § 361. Descriptio Personae 257 Attorney in Fact: § 362. Construction of Power 258 § 363. Married Woman 258 § 364. Fiduciary 259 § 365. Grantee 259 § 366. Agent 259 Fiduciary : § 367. Auctioneer 260 § 368. Receiver 260 § 369. Executor 260 § 370. General Guardian 260 § 371. Trustee 261 § 372. Appointment 261 § 373. Renunciation 261 § 374. Survival 261 § 375. Substitution 262 § 376. Sale 262 Table op Contents. xvii Page § 377. Death 263 § 378. Unauthorized Acts 263 § 379. Termination 263 Beneficiary : § 380. Of Income .' 264 § 381. Trustee as 264 § 382. Partnership 264 § 383. Society 265 Private Corporations: § 384. Organization 265 Statutory Authority: § 385. Business Corporations; Domestic ... 266 § 386. Foreign 266 § 387. Religious Corporations 267 § 388. Membership Corporations 268 § 389. Ultra Vires 268 § 390. Dissolution 268 B. Estates as Determined by Natural Features of Property and Its Use: 3. Natural Features: § 391. Mines 2B9 § 392. Watercourses 269 § 393. Land under Water 270 Improvements : § 394. Title 271 § 395. Impairment 271 4. Easements: § 396. Effect 272 § 397. Creation 273 Specific Easements: § 398. Support 274 § 399. Light and Air 275 § 400. Right of Way 275 § 401. Elevated Railroad 276 § 402. Extinguishment . . . .' 276 5. Highways: § 403. Intent of Grantor 276 § 404. Municipal Proceedings 278 § 405. Dedication; Prescription; Condemnation 279 § 406. Abandonment 280 Maps: § 407. Reference to 281 § 408. Private Maps - 282 § 409. Possession 283 § 410. Particular Roads 283 xviii Table of Contents. Page § 411. 6. Parks 284 § 412. Public , 284 § 413. Private 285 7. Lease: § 414. Estate . . « 285 § 415. Encumbrance 286 § 416. Renewal : 287 § 417. Consent 287 § 418. Tenancies 288 § 419. 8. License 288 9. Lien: Judgments : § 420. Generally 289 § 421. Executors 290 § 422. Partners 290 § 423. Lessee 290 § 424. Remaindermen 290 § 425. Banks 291 § 426. Suspension 291 § 427. Expiration 291 Taxes : § 428. In General 292 § 429. Confirmation 292 § 430. Apportionment 292 § 431. Reassessment 293 § 432. Release 293 § 433. Discharge on Closing 293 § 434. Accrual between Sale and Closing 295 § 435. Transfer Tax 295 Assessments: 5 436. In General 295 § 437. Power of Government 296 § 438. Confirmation 297 S 439. Apportionment 297 § 440. Accrual between Sale and Closing 298 § 441. Instalments 298 § 442. Water Rents 299 Mortgages : § 443. Open 299 § 444. Ancient 301 § 445. Discharge 302 § 446. Foreclosure Pending 303 § 447. Terms '. 303 § 448. Special Clauses 304 § 449. Street Opening Award 305 § 450. Deed Intended as Mortgage 305 Table op Contents. xix Page § 451. Bond 306 § 452. Miscellaneous 307 § 453. Mechanics' Liens 307 § 454. Municipal Liens 307 § 455. Testamentary Charges 309 § 456. Contract , 310 § 457. Tax Sale 310 § 458. Auctioneer's Bond 310 § 459. Condemnation 311 10. Covenants and Restrictions: § 460. Creation 311 § 461. Construction . ,( 312 1 462. Personal 313 § 463. Eunning with the Land 314 § 464. Effect 315 § 465. Nuisances 316 § 466. Dwellings 318 § 467. Structure - 319 i 468. Space 320 § 469. Miscellaneous 321 § 470. Extinguishment 321 § 471. Change of Neighborhood 323 11. Conditions: § 472. Precedent 324 Subsequent : § 473. Creation 324 § 474. Effect 326 § 475. Extinguishment , 326 i 476. 12. Escrow 326 13. Encroachments: § 477. Effect 327 § 478. Test , 327 § 479. Survey 330 Extent: § 480. Trifling 330 § 481. Material 331 § 482. Common Ownership 333 § 483. Street 334 § 484. Practical Applications 335 § 485. Railroad Tracks 336 § 486. Party Wall 336 § 487. Building 336 § 488. Bay Window 336 § 489. Stoop 336 § 490. Show Window 337 § 491. Ornamental Features 337 XX Table of Contents. Page § 492. Foundation Walls 337 § 493. Water Table 338 § 494. Vault 338 § 495. Removal Structures 338 CHAPTER VIII. Evidence. 1. Burden of Proof: § 500. In General 339 § 501. On Vendee 340 On Vendor: § 502. Special Circumstances 342 § 503. Rebuttal 343 2. Proof of Facts: § 504. Parol 343 § 505. Affidavits 344 § 506. Pleadings 345 § 507. Sheriff's Certificate 345 § 508. Contemporaneous Acts 345 Recitals : ' § 509. In the Chain 346 § 510. In Other Deeds 348 § 511. Official Records 349 § 512. Testimony 350 § 513. Identity and Pedigree 350 I 514. Histories 351 § 515. Abstract of Title 351 § 516. Admissions 352 § 517. Ancient Documents , 352 § 518. Custom 353 § 519. Foreign Law 353 3. Presumption: § 520. Limit of Proof 354 § 521. Presumptions of Law 356 Regularity : § 522. Judicial Proceedings 356 § 523. Authority 357 § 524. Performance of Duty 358 § 525. Decedents 359 § 526. Real Estate 360 § 527. Payment 361 § 528. Jurisdiction 362 § 529. Miscellaneous 362 § 530. Continuity 362 § 531. Life 363 § 532. Death 363 Table of Contents. xxi Page 4. Notice: Knowledge of Defect: § 533. Question Involved 366 § 534. Contract 367 § 535. Effect 368 § 536. How Acquired 369 § 537. Bona Fides 371 § 538. Partial Knowledge 371 § 539. Exceptions in Contract 372 § 540. Visible Defects 372 § 541. Public Record , 374 § 542. Possession 374 § 543. Judicial Sales 374 § 544. Knowledge of Agent 375 Constructive Notice: § 545. Record Generally 376 § 546. Contents of Instruments 377 § 547. Record in Wrong Book 378 § 548. Index 379 § 549. Recitals 379 § 550. Lis Pendens 380 § 551. Contemporaneous Deeds 381 § 552. Statute 382 § 553. Bona Fide Purchaser 382 § 554. Subsequent Title 383 CHAPTER IX. Record of Title. 1. Record Title: Recording Acts : § 560. Statutes 384 § 561. Instruments 385 Extent : § 562. Other Records 385 i 563. How Far Required 386 § 564. Reliance Upon 389 Establishing the Record: § 565. Authentication 390 § 566. Foreign Probate 392 § 567. Service of Process 392 § 568. Master's Report 393 Search : § 569. Abstract of Title 393 § 570. Tax Search 394 xxii Table of Contents. Page § 571. Name — Idem Sonans 394 § 572. Champertous Deed 394 2. Formal Requisites of Deeds: § ,573. Form 395 § 574. Parties 397 I 575. Consideration 398 Description : § 576. Sufficiency 399 § 577. Clerical Errors 400 § 578. Monuments ' 403 § 579. Highways 405 § 580. Shore 409 § 581. Discrepancy 410 § 582. Metes and Bounds 410 § 583. Habendum 414 § 584. Seal 414 Acknowledgment and Proof: § 585. Effect , 415 § 586. Form 416 § 587. Subscribing Witness 417 § 588. Execution 417 § 589. Delivery 418 § 590. 3. Surplusage 419 4. Deficiency: § 591. Area 419 § 592. Width 420 § 593. Length 421 Qualifying Words: § 594. More or Less 422 § 595. About; Or Nearly So 423 5. Possession: § 596. Element of Title 423 § 597. Parties to Action < . 424 § 598. Adverse Claim 425 6. Fraud: § 599. Action For 426 § 600. Suspicious Circumstances 427 i 601. Voidable 428 Fiduciaries : § 602. Trustees; Executors; Special Guardians; Com- mittees 430 § 603. Wives 430 § 604. Guardian in Socage 430 § 605. Life Tenant 430 § 606. Auctioneer 431 § 607. Tax Sales 431 § 608. Relation not Confidential 431 Table of Contents. xxiii ' Paoe § 609. Mortgagee's Representative 431 § 610. Aesignment for Benefit of Creditors 432 7. Adverse Claim: § 611. In General 432 § 612. Litigation 434 § 613. Lis Pendens 435 8. Estoppel: Judgment : § 614. Effect : 437 § 615. Adjudications 441 § 616, Representation 443 § 617. Default . . 444 § 618. Error 444 § 619. Collateral Attack 445 § 620. Appeal 446 Deed: § 621. Warranty 446 § 622. Covenant 447 § 623. Certificate 447 § 624. In Pais 447 9. Curing Defects: § 625. Existence of Curable Defects 448 § 626. Opportunity to Remove Defects 449 § 627. Completing the Record , 451 Corrections : § 628. Affidavits 452 § 629. Amendment 452 § 630. Nwne pro Tunc .' 453 § 631. Confirmation of Referee's Report 455 § 632. Certificates 455 § 633. Deeds 455 Conveyances : § 634. Liens 456 § 635. Title 456 Ratification : § 636. Acquiescence ! . .'. 457 § 637. Acceptance of Proceeds 458 § 638. Time 459 § 639. Legal Proceedings 462 CHAPTER X. Rights and Remedies. 1. Objections: § 650. Duty of Making 464 § 651. How Made 465 xxiv Table of Contents. Page § 652. When Made 466 § 653. By Whom 467 § 654. When Noticed by the Court 468 § 655. Waiver 469 § 656. Curable Defects 471 § 657. Evidence 472 § 658. Knowledge 474 2. Jurisdiction: 4 659. Land Outside the State 475 § 660. Court of Appeals 475 § 66L Surrogate's Court 475 § 662. Inferior Courts 476 § 663. City Court 476 § 664. Municipal Court 476 § 665. Justice of the Peace 477 § 666. Court of Claims 477 § 667. 3. Relief 477 § 668. Law and Equity 478 § 669. Good Faith 479 § 670. Owner 480 § 671. Caveat Emptor 481 § 672. Vendee 482 § 673. Mortgage 482 § 674. Bond and Note 483 § 675. Possession 483 § 676. Eeferee 483 § 677. Fiduciary 484 § 678. Mutual Mistake 484 Time: § 679. Of the Essence 485 § 680. Judicial Sale 486 § 681. Vendee's Rights 487 § 682. Vendor's Rights 488 § 683. Abatement of Consideration 489 § 684. Vendor's Demand 489 § 685. Vendee's Demand 491 § 686. Both Parties' Demand 494 § 687. Exchange 495 4. Remedy: Specific Performance: § 688. Discretion 495 § 689. Change of Circumstance 496 § 690. Mutuality 496 § 691. Vendee 497 § 692. Vendor 498 § 693. Damages 498 Table of Contents. xxv Page Judicial Sale: § 694. Parties to Action 499 § 695. Vendee 499 § 696. Vendor 501 Rescission: § 697. Money Had and Received 503 § 698. Vendee 503 § 699. Vendor 505 Vendee's Lien: § 700. Creation 506 § 701. Extent 507 § 702. Enforcement 507 § 703. Assignee 507 § 704. Extinguishment 508 § 705. Lis Pendens 508 § 706. Vendor's Lien 508 Miscellaneous : § 707. Covenant 508 § 708. Execution 509 § 709. Injunction 509 § 710. Mandamus 509 § 711. Ejectment 509 § 712. Arbitration 510 5. Damages: Vendee's Measure: § 713. Private Sales 510 § 714. Judicial Sales 511 § 715. Generally 512 § 716. L Deposit and Expense 512 § 717. Items Recoverable 513 § 718. Interest 514 § 719. Rents 515 § 720. Good Faith 515 § 721. II. Value 517 § 722. Fraud 519 § 723. III. Full Damages 519 § 724. Vendor's Measure 520 § 725. Expenses 520 § 726. Interest and Rent 521 § 727. Resale 522 § 728. Exchange 522 § 729. Other Actions 523 § 730. Liquidated Damages 524 6. Practice: § 731. Lis Pendens 525 xxvi Table of Contents. Pleadings : Page § 732. Complaint and Answer 525 § 733. Definite and Certain 527 § 734. Joinder of Actions 527 § 735. Bill of Particulars 527 § 736. Stay 528 § 737. Trial 528 Proof of Title : § 738. Correction 529 § 739. Explanation 530 § 740. Objections to Title 530 § 741. Reference 530 § 742. Decree 531 § 743. Appellate Court 531 § 744. Submission of Controversy 532 7. Costs: § 745. Good Faith 533 § 746. Resale 535 § 747. How Charged ' 535 § 748. Amount 535 § 749. Allowance 536 § 750. Disbursements 536 8. Broker's Commissions: § 751. Sales 537 § 752. Mortgages 538 § 753. Notice 538 § 754. Pleading 539 § 755. Special Contracts 539 9. Attorney and Client: § 756. Relation 539 § 757. Approval of Title 540 § 758. Liability 540 10. Negligence: § 759. Attorneys 541 § 760. County Clerk 541 § 761. 11. Deceit 542 i 762. 12. Insurance 543 13. Registration: § 763. Theory 544 § 764. Practice 545 TABLE OF CASES CITED. Page Abate v. Bianco, 143 A. D. 511 67 Abbott V. Allen, 2 Johns. Ch. 519 482 Abbott V. Curran, 98 N. Y. 665; 21 W. D. 234; affg. 20 Wkly. Dig. 344; 33 Hun, 664 83, 114, 156, 162, 401, 444, 445 Abbott V. James, 111 N. Y. 673; affg. 14 S. R. 597 27, 31, 172 Abraham v. Mayer, 7 Misc. 250 378, 383 Abrams v. Rhoner, 44 Hun, 507 ; 9 S. R. 207 233, 353, 355, 386 Ackerman v. Gorton, 67 N. Y. 63; 3 W. D. 392; rvsg. 6 Hun, 301 178, 212, 291 Acme Realty Co. v. Schinasi, 215 N. Y. 493; affg. 154 A. D. 397. . . . 334 335, 336, 373 Adair v. Adair, 74 N". Y. 622; 7 W. D. 501 17, 285 Adaml v. Backer, 29 Misc. 93 121, 443, 446 Adami v. Gercken, 164 A. D. 472 ; .223, 444 Adams's Executors v.' Spofford, referred to in Outerbridge v. Phelps, 58 How. Pr. 77, 81 273 Ainslee v. Hicks, 13 A. D. 388; affd. 153 N. Y. 643, on opin. be- low 295, 298, 394 Albrecht v. Pell, 11 Hun, 127; 4 W. D. 502 201, 210, 248 Albro V. Gowland, 98 A. D. 474 421, 423 Aldrich v. Bailey, 132 N. Y. 85; rvsg. 28 St. Rep^ 571; 8 Supp. 435. 245 Alexander v. Greacen, 36 Misc. 526 ; rvsg. 36 Misc. 133 49, 484 Alkus V. Goettmann, 60 Hun, 470; 15 Supp. 183 ,27, 179 Allen V. James, 7 Daly, 13 537 Allen V. McKeon, 127 A. D. 277 12, 543 Allen V. Reynolds, 4 J. & S. .(36 Super.) 297 415 Alpern v. Farrell, 133 A. D. 278 51, 54, 55, 308, 388, 437 Althause v. Radde, 3 Bosw. 410 107, 109, 111, 118, 357 Altman v, McMillin, 115 A. D. 234 27, 312, 318, 348 Alvord V. Beach, 5 Abb. Pr. 451 35, 71, 113, 123, 344, 347, 356 Alward v. Holmes, 10 Abb. N. 0. 96 36, 267, 268, 357 Ames V. Danzilo, 158 A. D. 232 130, 454 Amory v. Lord, 9 N. Y. 403 206, 228 Anderson, Matter of, 5 Leg. Obs. 302 191 Anderson v. Blood, 152 N. Y. 285 ; affg. 86 Hun, 244 376, 540 Anderson v. Davison, 42 Hun, 431 ; 5 S. R. 48 181 Andrews v. Borland, 10 S. R. 396 ; 45 Hun, 591 90, 93 Andrews v. O'Mahoney, 112 N. Y. 567; affg. 17 S. R. 686; 1 Supp. 750 116, 128, 130, 468, 501 Anonymous, 2 Abb. N. C. 56 325, 326 Anthony v. Crippen, 24 W. D. 86; 40 Hun, 633 523 (xxvii) xxviii Table of Cases Cited. Pags Archer v. Archer, 84 Hun, 297; affd. 155 N. Y. 415 269, 501 Argall V. Bachrach, 18 W. D. 267; 31 Hun, 174 90, 92, 128 Argall V. Raynor, 20 Hun, 267 10, 24, 27, 125, 126, 255, 260, 265 Arion Realty Co. v. Schmidt, 119 A. D. 872 404, 405 Armstrong v. Wernstein, 6 Supp. 148; 2 Silv. Supm. 61; 53 Hun. 635, A. V. Weinstein 24, 27, 179, 533 Arnold v. Rees, 18 N. Y. 57 12+ Arnow v. Oarmel Realty Co., 141 A. D. 913 240 Arnstein v. Burroughs, 27 Supp. 958 332, 342 Aach, Matter of, 75 A. D. 486; 33 Civ. Proc. 177 101, 139, 140 142, 143, 144 Aspinwall v. Balch, 4 Abb. N. C. 193 272 Atkins V. Bahrett, 19 Barb. 639 504 Augustine v. Britt, 15 Hun, 395 ; aflfd. 80 N. Y. 647, no opin 408 ' Ayers v. Courvoisier, 101 A. D. 97 187, 193 Bachmann v. Wagner, 16 Supp. 67 508 Back V. Crussell, 2 Abb. Pr. 386 96 Bacot V. Fessenden, 130 A. D. 819; see 64 Misc. 422; affd. 139 A. D. 647 17, ,372 Baecht v. Hevesy, 115 A. D. 509 381, 384, 395, 436, 502 Baer, Matter of, 147 N. Y. 348 ; affg. 87 Hun, 483 , Nathan v. Hen- dricks 28, 121, 213, 214 Bage V. Millard, 12 Leg. Obs. 57 492 Baker v. Lorillard, 4 N. Y. 257 139, 203, 216, 219, 220, 221 Baldwin v. M'cGrath, 90 A. D. 199; rvsg. 41 Misc. 39; see 113 A. D. 902 ; affd. 188 N. Y. 606, no opin 8, 485, 486 Baldwin v. Munn, 2 Wend. 399 512 Baldwin v. Salter, 8 Paige, 473 53 Baldwin v. Talmadge, 7 J. & S. (39 Super.) 400 3 Bangs V. Hill, 25 W. D. 9; 5 S. R. 26; 41 Hun, 645 182, ISO Banks v. Walker, 2 Sand. Ch. 344; affd. 3 Barb. Oh. 438 482 Barber v. Woolf, 167 A. D. 627; rvsg. 90 Misc. 106 131, 160, 276, 459 Bardes v. Herman, 144 A. D. 772 ; affg. 62 Misc. 428 ; affd. 207 N. Y. 745, no opin 16, 156, 270, 339 Barkenthein v. People, 212 N. Y. 36; affg. 155 A. D. 285; motion for reargument denied, 213 N. Y. 554 38, 463, 545, 546 Barlow v. Scott, 24 N. Y. 40 395, 425, 434, 478, 527 Barnard v. Heydrick, 49 Barb. 62; 32 How. Pr. 97, Brainerd v. H.; 2 Abb. Pr. N. S. 47 30, 93, 94, 95, 104, 109 Barnes v. Luther, 77 Hun, 234; 28 Supp. 400, B. v. Barnard, . . .77, 214 223, 255 Bascom v. Albertson, 34 N. Y. 574 208, 266 Baueher v. Stewart, 136 A. D. 844 378 Baumeister v. Demuth, 84 A. D. 394; rvsg. 40 Misc. 22; affd. 178 N. Y. 630, no opin 71, 107, 109, 110, 437, 448, 453, 533 Baumgrass v. Brickell, 7 S. R. 685 27, 532 Table of Oases Cited. xxix Page Bayer v. Phillips, 17 Abb. N. C. 425; 10 Civ. Proc. 227; 40 Hun, 640; 24 W. D. 143; 1 S. R. 762 125, 260, 432 Baylis v. Stimson, 110 N. Y. 621; 16 S. R. 175; 2 Silv. C. A. 70; affg. 21 J. & S. (53 Super.) 225; 24 W. D. 327 2, 10, 398, 474 Beardmore V. Barry, 118 A. D. 334; affd. 193 N. Y. 639, no opin. 419, 422 Beams v. Mela, 10 Supp. 429; 57 Hun, 588 27, 174, 185, 227 Bechstein v. Schultz, 120 N. Y. 168; aflfg. 45 Hun, 191; 19 Abb. N. C. 168; 27 W. D. 141; 9 S. R. 815 115, 4.55 Beckenbaugh v. Nally, 32 Hun, 160; 19 W. D. 94 74, 378 Bedford v. Fields, 21 Hun, 589 279, 494 Begen v. Pettua, 144 A. B. 476 488 Begen v. Pettus, 167 A. B. 622; affg. 80 Misc. 120 339 Behrman v. Von Heyn, 15 Supp. 604; 60 Hun, 586 197, 200 Beinhauer v. Morris, 142 A. B. 398 .- . . 13, 330, 543 Bell V. City Security Co., 113 A. B. 896 501 Bellamy v. Guhl, 62 How. Pr. 460 80, 454 Bellesheim, Matter of; see Cromwell v. Phipps. Bellinger v. Roatstone, 6 W. B. 69 142 Belmont v. O'Brien, 12 N. Y. 394 172, 262,, 301 Belmont Powell Holding Co. v. Serial Building Loan & Savings Institution, 167 A. B. 127 239, 546 Bend v. Ruekman, 17 W. B. 153 ; 29 Hun, 482 103, 435, 487 Bendheim v. Morrow, 73 Hun, 90; see 9 A. B. 617; affd. 158 N. Y. 729, no opin 302, 359 Benedict v. Webb, 98 N. Y. 460; 21 W. B. 382 176, 185, 229, 230 Bennett v. Mayor &c. of New York, 1 Sandf . 485 154 Bensel v. Gray, 62 N. Y. 632; 10 W. B. 36; affg. 6 J. & S. (38 Super.) 447 45, 46, 1.53, 508 Bensel v. Gray, 80 N. Y. 517; affg. 12 J. & S. (44 Super.) 372. ... 45, 48, 153 Bensinger v. Erhardt, 74 A. B. 169 60, 342, 520 Benson v. Corbin, 145 N. Y. 351 ; affg. 78 Hun, 202 211, 221 Benson v. Cromwell, 26 Barb. 218; 6 Abb. Pr. 83. .29, 124, 464, 465, 466 Benson v. Sayre, 7 Abb. Pr. 472 note 104 Berenbroiok v. St. Luke's Hospital, 23 A. B. 339 ; app. disd. 155 N". Y. 655, no opin , 326 Bergen v. Wyckoff, 1 Civ. Proc. 1; 84 N. Y. 659; 11 W. B. 570; affg. 22 Hun, 141 •. 339, 394, 429, 441, 452, 456 Berger v. Crist, 121 A. B. 483 53, 64, 294, 303 Berger v. Renz, 127 A. B. 923 . .": 404 Berger v. Waldbaum, 46 Misc. 4 348, 361 Berkowitz v. Brown, 3 M'isc. 1 239, 248, 347 Bernhardt v. Kurz, 38 Supp. 103 122 Bernstein v. Nealis, 144 N. Y. 347; rvsg. 19 Supp. 739 124, 412, 446 Bernstein v. Solomon, 42 A. B. 621; 61 Supp. 1132, B. v. Solomon- son 197, 213 XXX Table of Cases Cited. Paob Bertles v. Nunan, 92 N. Y. 152; 12 Abb. N. C. 283; 16 W. D. 572 ' 30, 257 Beyer v. Braender, 25 J. & S. (57 Super.) 429; 8 Supp. 306 506 Beyer v. Marks, 2 Sweeny, 715 329, 490 Biden v. James, 3 S. R. 734; affd. HI N. Y. 680, no opin 54, 60, 508 Bigler v. Morgan, 77 N. Y. 312 48, 56, 62, 269, 270, 286, 469, 512 Binzen v. Epstein, 58 A. D. 304; affd. 172 N. Y. 596, no opin. . .458, 460 Bixby V. Smith, 3 Hun, 62 ; 5 T. & C. 279 ; 49 How. Pr. 50 92 Black V. Williams, 51 Hun, 280; 4 Supp. 243 212 Blain V. Taylor, 19 Abb. Pr. 228 .314, 321 Blakely v. Calder, 15 N. Y. 617; aflfg. 13 How. Pr. 476. . . .99, 120, 438 Blanchard v. Blanchard, 33 Misc. 284 140, 141, 142 Blanck v. Sadlier, 153 N. Y. 551; affg. 5 A. D. 81; aflfg. 16 Misc. 164 ' 20, 304 Blanco v. Foote, 32 Barb. 535 500 Blate V. Clarry, 50 Misc. 668 516 Blauvelt v. Gallagher, 22 Misc. 564 200 Blewett V. Baker, 58 N". Y. 611 56 Block V. Braun, 116 A. D. 923 379 Bloomfield v. Ketcham, 25 Hun, 218; 13 W. D. 22; rvsd. 95 N. Y. 657; 18 W. D. 540; 5 Civ. Proc. 407 273, 275, 283 Bloomgarden v. Hoffmann, 112 A. D. 887 330, 338 Board of Education v. Reilly, 71 A. D. 468 312, 414 Bodine v. Edwards, 3 Ch. Sen. 46; 2 Leg. Obs. 231' . 483 Boecher v. Smada Realty Co., 164 A. D. 837 227, 229 Boehmcke v. McKeon, 119 A. D. 30 126, 182 Bogardus v. Caragher, 26 J. & S. (58 Super.) 577; 10 Supp. 225. . 323 Bogert V. Bogert, 45 Barb. 121 108, 109, 163, 360, 451, 452 Bogert V. Bogert, 5 Supp. 893; 53 Hun, 629; 1 Silv. Supm. 436; reargument denied, 6 Supp. 299 ; 53 Hun, 636 . . 122, 247, 439, 456, 466 Bohm V. Fay, 18 Abb. N. C. 175; 41 Hun, 646; 4 S. R. 94; 25 W. D. 70 233 Bolognino v. Shotland, 162 A. D. 679 494 Bonnet v. Babbage, 19 Supp. 934 252, 492 Bookman v. Kurzman; see Brookman v. K. Boon V. James, 21 A. D. 627 426 Booth V. Milliken, 127 A^ D. 522; affd. 194 N. Y. 553 51, 62, 520 Borgrosser v. Risoh, 149 A. D. 248 528 Boskowitz V. Held, 15 A. D. 306 ; affg. 18 Misc. 674, Boscowitz v. H. ; affd. 153 N". Y. 666, on opin. below 201 Bostwick V. Beach, 103 N. Y. 414; 25 W. D. 98; 3 S. R. 659; see 31 Hun, 343 ; 18 W. D. 435 249, 492, 522 Bostwick V. Beach, 105 N. Y. 601; 1 Silv. C. A. 451; 26 W. H. 504; 8 S. R. 63 514^ 521 Bowen v. Bell, 20 Johns. 338 46, 367, 398 Bowler v. Ennis, 46 A. D. 309 og Table of Cases Cited. xxxi Page Bowman v. Tallman, 40 How. Pr. 1; 3 Abb. Deo. 182 note; 41 N. Y. 619; affg. 2 Robt. 385; 27 How. Pr. 212 541 Bowiie V. O'Brien, 5 Daly, 474 509, 523 Boyd V. Schlealnger, 59 N. Y. 301 45, 46, 77, 153, 384, 385, 497 Bradford v. Mogk, 55 Hun, 482; 8 Supp. 709 182 Bradley v. Crane, 201 N. Y. 14; rvsg. 133 A. D. 889 280, 284 Bradley v. Krudop, 128 A. D. 200 392 Bradley v. Leahy, 54 Hun, 390 ; 7 Supp. 461 74, 303 Bradley v. Murray, 23 Supp. 809 note 112 Brainerd v. Heydrick; see Barnard v. H. Braun v. Vollmer, 89 A. D. 43 161, 306, 389 Brazier v. Wynkoop, 3 Johns. Cas. 440 512 Breen v. Locke, 46 Hun, 291 ; 11 S. R. 288 156, 270- Breevort v. M'Jimaey, 1 Edw. Ch. 551 124, 133. Brenen v. North, 7 A. D. 79; 25 Civ. Proe. 398 94, 98, 104, 106; 109, 112, 480 Brennan, Matter of, 21 A. D. 236 264, 355, 372, 439, 447, 448 Brennan v. Willson, 71 N. Y. 502; 4 Abb. N. C. 279; 5 W. D. 576; affg. 7 Daly, 59 146 Brenstein v. North American Realty Co., 119 Supp. 1 270, 346, 410 Brevoort v. Brevoort, 70 N. Y. 136; 4 W. D. 573 121 Brevoort v. Brevoort, 115 N. Y. 656 118 Brevoort v. Grace, 53 N. Y. 245 39,213 Bridgeport Brass Co., Matter of, 77 Misc. 69; affd. 155 A. D. 910, on opin. below 134, 213, 222, 476, 500 Brinekerhoff v. Phelps, 24 Barb. 100; approved 40 N. Y. 59, Pumpelly v. P 197, 484, 516, 517 Brinkerhoff v. Olp, 35 Barb. 27 59, 524 Broadbelt v. Loew, 15 A. D. 343; affd. 162 N. Y. 642, on opin. below; see 21 Misc. 169 335, 336, 337 Brody, Adler & Koch Co. v. Hochstadter, 160 A. D. 310 '.130, 454 478, 49B Brody, Adler & Koch Co. v. Hochstadter, No. 2, 150 A. D. 530 529 Brokaw v. Duffy, 165 N. Y. 391; 31 Civ. Proe. 349; affg, 36 A. D. 147 2, 6, 8, 245, 370, 371, 433 Bromley v. Miller, 2 T. & C. 575 195, 392 Brooklyn, City of, v. Copeland, 106 N. Y. 496; 27 W. D. 225; 11 S. R. 206; affg. 22 W. D. 347; 37 Hun, 643 284 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; rvsg. 3 Lans. 429 17, 40, 285, 309 Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84 86 Brookman v. Kurzman, 94 N. Y. 272 ; 66 How. Pr. 237 , Bookman v. K.; 18 W. D. 201; rvsg. 16 J. & S. (48 Super.) 178 401, 403 Brooks V. Terry, 14 Supp. 238 ; 60 Hun, 577 196 Brown v. Beckmann, 53 A. D! 257 109, 110, 444, 445 Brown v. Bell, 8 S. R. 894.- 241, 534 xxxii Table of Cases Cited. Page Brown v. Genet, 63 How. Pr. 236; 15 W. D. 229 540 Brown v. Helmutli, 21 Supp. 615 537 Brown v. Lawrence Park Realty Co., 133 A. D. 753 295 Brown v. Mount, 38 A. D. 440 444 Brown v. Schumaker, 8 W. D. 456 ; 540, 541 Browning, Matter of, 2 Paige, 64 353, 384 Brunner v. Meigs, 64 N. Y. 506; 2 W. D. 553, Bruner v. M.; affg. 6 Hun, 203; 2 W. D. 70 175, 177, 503 Buchanan v. Tebbetts, 69 Hun, 81 185, 226 Buderus v. Immen, 20 W. D. 88 ; 34 Hun, 628 430, 457 Buel V. Southwick, 70 N". Y. 581 ; 5 W. D. 472 152, 161, 215, 213 221, 229, 431, 534 Builders' Mortgage Co. v. Berlcowitz, 134 A. D. 136; see 142 A. D. 57; affd. 201 N. Y. 596, no opin 413, 456 Bull, Matter of, 45 Barb. 334; 31 How. Pr. 69 38, 78, 100, 189 260, 261, 418, 441, 445, 467 BuUard v. Bieknell, 26 A. D. 319 425 Bumpus V. Platner, 1 Johns. Ch. 213 482 Bunomo v. Sehlitzer, 198 N". Y. 584 ; affg. 129 A. D. 930 46 Burke v. Kaltenbach, 125 A. D. 261 359, 362 Burlando, Matter of , 165 A. D. 777 542 Burnham v. Denike, 54 A. D. 628; affd. 167 N. Y. 623, no opin 75 Burnham v. White, 117 A. D. 515 ,179 Burrowes v. Peck, 19 W. D. 15; 32 Hun, 67 154 Burrows v. Stumm, 22 How. Pr. 483; see 24 N. Y. 463; 27 N. Y. 357 217 Burwell v. Jackson, 9 N. Y. 535 45, 49, 51, 57, 64, 77, 464, 466, 505 Butler V. Emmett, 8 Paige, 12 134, 135, 136, 138, 139 Butler V. Tomlinson, 38 Barb. 641 ; 15 Abb. Pr. 88 380 Buxbaum v. Devoe, 123 A. D. 653 424, 425 Byrnes v. Baer, 86 N. Y. 210; 13 W. D. 128 166 Calder v. Jenkins, 16 Supp. 797 252, 347 Camardella v. Schwartz, 126 A. D. 334 245, 251 Cambrelleng v. Purton, 125 N. Y. 610; affg. 12 Supp. 741, Cambre- leng V. P. ; 58 Hun, 609, Cambreling v. P 15, 365 Caminez v. Goodman, 119 A. D. 484 284, 351 ■Camp V. Cronkright, 59 Hun, 488; 13 Supp. 307 218 Camp V. Morse, 5 Den. 161 54, 449 Camp V. Redmond, 59 Hun, 377 ; 13 Supp. 103 63, 526 Campbell, In re, Tucker, 240 139, 513, 536 Campbell v. Hughes, 69 Misc. 433 443 Campbell v. Morgan, 68 Hun, 490 67, 161, 168, 326, 399 Campbell v. Prague, 6 A. D. 554 54, 449 Campbell v. Stokes, 142 N. Y. 23 ; affg. 21 Supp. 493 ; 66 Hun, 381 121, 219 Cantor v. Robinson, 196 N. Y. 546; affg. 120 A. D. 875 44, 271 Table of Cases Cited. xxxiii Page Carman v. Pultz, 21 N. Y. 547 ; 59, 469 Carolan v. Yoran, 104 A. D. 488; affd. 186 N. Y. 575, no opin. . .235, 416 Carpenter v. Bailey, 17 Wend. 244 47 Carpenter v. Bonner, 26 A. D. 462 183, 192 Carr v. Dooley, 19 Misc. 553 299, 303, 484 Carr v. Roach, 2 Duer, 20 49, 295 Carroll v. Conley, 9 Supp. 865 ; 56 Hun, 649 ; affd. 124 N. Y. 643, no opin 183, 186, 223 Carroll V. McKarahay, 35 A. D. 582 16, 127 Casey v. Casey, 19 A. D. 219; rvsg. 19 Misc. 272 112, 364, 444 Caswell V. Black River Cotton & Woolen Mfg. Co., 14 Johns. 453 4!) 300, 505 Catholic Foreign Mission Society v. Oussani, 215 N. Y. 1; rvsg. 157 A. D. 893 492, 496, 497 Cavanagh, Matter of, 37 Barb. 22; 14 Abb. Pr. 258; 23 How. Pr.. 358 30, 119 Cerf V. Diener, 210 N. Y. 156; rvsg. 148 A. D. 150 33, 366 Chapberlin v. Brady, 94 N. Y. 649; 17 J. & S. (49 Super.) 484. .61, 513 Chambers v. Ackley, 91 Supp. 78 436, 538 Champlin v. Haight, 10 Paige, 274 ; rvsd. 7 Hill, 245, on facts . . 194, 200 Champlin v. Parish, 3 Edw. 581 ,. 189 Chanler, Matter of, 59 A. D. 613 425 Chase v. Chase, 95 N. Y. 373; 19 W. D. 89, C. v. Knowles; rvsg. 30 Hun, 86; 17 W. D. 457; also rvsg. 5 Monthly Law Bull. 44 34, 296 Chase v. Lawson, 36 Hun, 221 ; 21 W. D. 572 91, 93 Oheesman v. Thorne, 1 Edw. 629 120, 121, 221, 419, 443 Church v. Bourne, 79 Misc. 629 54, 517 Church V. Standard Railroad Signal Co., 52 A. D. 407; 65 Supp. 116 62 Church V. Standard Railroad Signal Co., 60 A. D. 613; 69 Supp. 726; rvsg. 30 Misc. 261 62, 317 Ohwatal v. Schreiner, 148 N. Y. 683; affg. 77 Hun, 611; affg. 3 Misc. 192 25, 220 City & Suburban Homes Co. v. People, 157 A. D. 459 546 City & County Contract Co. v. Bussing, 156 A. D. 315 296 Clark V. Clark, 21 How. Pr. 479; 14 Abb. Pr. 299 119, 123 Clark V. Sprague, No. 2, 113 A. D. 645 .i 155 Clarke, Matter of, 131 A. D. 688; affd. 195 N. Y. 613, no opin. .161, 345 359, 439, 443 Clarke v. Hughes, 13 Barb. 147 50, 51, 424, 434, 527 Clarke v. Long Island Realty Co., 126 A. D. 282 159 Clarke v. 'Wollpert, 128 A. D. 203 233 Clemens v. Clemens, 37 N". Y. 59; 4 Trans. App. 50; affg. 60 Barb. 366 107, 120, 121, 260, 261, 392, 443, 462 Clement v. Burtis, 121 N. Y. 708; 3 Silv. C. A. 62; 25 Abb. N. C. 346; affg. 10 Supp. 364 316, 325 Cleveland v. Burrill, 25 Barb. 532 3, 24, 464, 475, 521, 528 xxxiv Table of Cases Cited. Page Clexton V. Tunnard, 119 A. D. 709 60, 63, 258, 526 Clifford V. Morrell, 22 A. D. 470 173, 187, 192, 199 aody V. Southard, 57 Misc. 242 161, 182, 237, 281 aose V. William M. Calder Co., 139 A. D. 175; affd. 203 N. Y. 590, no opin ^^ CSute V. Robison, 2 Johns. 595 26, 44, 61, 157, 451, 526 Coates V. Fairchild, 14 W. D. 189; affd. 89 N. Y. 631, on opin. below 276, 329, 338, 369, 451 Cockroft V. Muller, 71 K Y. 367; 5 W. D. 502 514 Cockroft V. New York & Harlem Railroad Co., 69 N. Y. 201; 4 W. D. 374 512, 516 CoflSn V. Lesster, 36 Hun, 347; 22 W. T>. 11, C. v. Lester; affd. 110 N. Y. 645, no opin. . 86, 93, 95, 494 Coggshall v. Steele, 22 W. D. 537; 38 Hun, 641, Coggshal v. S 47 Cogswell V. Boehm, 5 Supp. 67 62, 469, 470, 520 Cohn-Baer-Myers & Aronson Co. v. Realty Transfer Co., 117 A. D. 215; 102 Supp. 122; 38 Civ. Proc. 145; affd. 191 N. Y. 533. . .526, 527 Colby V. Rowley, 4 Abb. Pr. 361 290, 427 Coleman v. Beach, 97 N. Y. 546; 20 W. D. 410 178, 187 Coleman v. Bruch, 132 A. D. 716 344, 347, 352, 394 College Point Savings Bank v. Vollmer, 44 A. D. 619; affd. 161 N. Y. 626, no opin 239, 448 Coleon V. Baker, 42 Misc. 407 256 Concklin v. Hall„2 Barb. Oh. 136 109, 445 Conger v. Weaver, 20 N. Y. 140 513 Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. Pr. N. S. 484 267, 469, 520 Congregation Shaaer Hash Moin v. Halladay, 50 N. Y. 664; over- ruling 3 Robt. 386, Congregation Shaaer Hash-moin v. Halliday. . 60 Conklin v. Brown, 57 Barb. 265; 8 Abb. Pr. N. S, 345 68, 163 Conklin v. Egerton's Administrator, 21 Wend. 430; affd. 25 Wend 224 , ■ 191 Conlen v. Rizer, No. 1, 109 A. D. 537; 35 Civ. Proc. 175. .. . 115, 317, 530 Conlen v. Rizer, No. 2, 110 A. D. 887 255, 321,' 329^ 465 Connor v. Connor, 20 Civ. Proc. 308; 59 Hun, 623; 13 Supp. 402. .' 102 123, 124, 300, 455 Oonover, Matter of, 27 How. Pr. 224 jgn Conover v. Hoffman, 1 Abb. Dee. 429; 15 Abb. Pr 100- affs 1 Bosw. 214 ' Yeg j^^ Coogan, Matter of, 177 N. Y. 376; affg. 87 A. D. 632, Dresser v' Travis 287, 438! 444 Coogan V. Ockershausen, 23 J. & S. (55 Super.)' 286- 28 W D 173- affg. 11 Civ. Proc. 315 ;. " 'legigo Cook V. Esleeck, 17 How. Pr. 134; 8 Abb. Pr. 170- affd 19 N v' 412, C. V. Kelsey ■ i» in. J£. Cook V. Parren, 34 Barb. 95; 12 Abb. Pr. 359; 21 How Pr 286 C ^^ V. Farnam; affg. 11 Abb. Pr. 40, C. v. Farmer .....'.. 92 Table op Cases Cited. xxxv Page Ck)ok V. Kelsey, 19 N. Y. 412 ; affg. 8 Abb. Pr. 170 98 Cook V. Ryan, 29 Hun, 249 ; 16 W. D. 339 183, 290, 431 Cook V. Saekett, 110 A. D. 322 126, 200 Cook V. Wright, 160 A. D. 64 .171, 260 Goray v. Matthewson, 7 Lans. 80; 44 How. Pr. 80, C. v. Mathew- son 20, 386, 471, 483, 531 Corbett v. Fleming, 122 Supp. 287 295, 501 Corbin v. Baker, 167 N. Y. 128; affg. 56 A. D. 35' . . . .117, 222, 429, 442 Corn V. Bass, 43 A. D. 53 319 Corn V. Suderov, 160 A. D. 916 ' 478 Cornell v. Cornell, 14 St. Rep. 612; affd. 109 N". Y. 644, no opin 121 255, 401, 450 Cornell v. Woodruflf, 77 N. Y. 203 294, 431 Correll v. Lauterbach, 12 A. D. 531; aflfg. 14 Misc. 469; affd. 159 N. Y. 553, on opin. below 190, 197 Corrigan v. Fmik, 109 A. D. 846 523 Coster V. Clarke, 3 Edw. 428 70, 120, 122, 171, 205, 249, 250, 252 Cotton V. Burkelman, 142 N. Y. 160; affg. 2 Misc. 165 177 Coudert v. Huerstel, 60 A. D. 83 292, 295 Couper V. O'Neill, 53 Misc. 319 539 Cox V. Hawke, 93 Supp. 1117 537 Crabbe v. Hardy, 77 Misc. 1 270, 360, 545 Crane v. Evans, 18 Abb. N". C. 444; 12 Civ. Proc. 445 • 531 Crane v. O'Connor, 4 Edw. 409 290 Crane v. Robinson, 19 Misc. 40 295, 484 Crasto V. Wliite, 3 Supp. 682 538 Ci-asto V. White, 5 Supp. 718 538 Crittenden v. Fairchild, 41 N. Y. 289 182 Crocker v. Gollner, 20 Supp. 17 323 Crocker v. Mulligan, 154 A. D. 711 166 Croghan v. Livingston, 17 N. Y. 218; 6 Abb. Pr. 350 123, 452 Cromwell v. Hull, 97 N. Y. 209; 20 W. D. 53 75, 120, 368, 382 Cromwell v. Phipps, 6 Dem. 60; 17 S. R. 10, Matter of Bellesheim; I Supp. 276 248, 340, 347, 364, 415, 473 Crosby V. Thedford, 13 Daly, 150; 21 W. D. 544; 7 Civ. Proc. 245. . 94 Crouter v. Crouter, 133 N. Y. 55; affg. 17 Supp. 758; 63 Hun, 630. . 86 91, 108, 123, 450 Cuban Production Co. v. Rodriguez, 124 A. D. 363 495 Curtis v. Ballagh, 4 Edw. 635 420, 435 Curtis v. Hitchcock, ] Paige, 399 ; 2 Leg. Obs. 363 370, 380, 383 Cusaek v. Aikman, 93 A. D. 579 537 Cussack V. Tweedy, 126 N. Y. 81; affg. 56 Hun, 617, Cusaek v. T.; II Supp. 16 183, 186, 418 Daly V. Bruen, 88 A. D. 263 ; 84 Supp. 971 57 Daly V. Burehell, 13 Abb. Pr. N. S. 264 100, 104, 125 126 Daly V. Greenberg, 69 Hun, 228 220 xxxvi Table of Cases Cited. Page Dana v. Jones, 91 A. D. 496 183, 185, 345, 346, 415 Danaher v. Hildebrand, 72 Misc. 240 25, 186, 197, 198 Daniels v. Brodie, 3 Edw. 275 65, 530 Darker v. Beck, 11 Supp. 94; 56 Hun, 650 283 Darling v. Alexander, 130 A. D. 85 414 Darling v. Littlejohn, 12 Supp. 205; 58 Hun, 608 291 Darrin v.- Hatfield, Seld. Notes, 38; rvsg. 4 Sandf. 468, Darvin V. H 77, 101, 465, 466 Darrow v. Cornell, 12 A. D. 604 519, 524 Darrow v. Cornell, 30 A. D. 115 58, 60, 386, 485 Darrow v. Horton, 6 S. R. 718 278, 486 Davidson v. Crooks, 45 A. D. 616 151, 377 Davidson v. Jones, 112 A. D. 254 25, 30, 212 Davis V. Carroll, 4 Monthly L. Bull. 31 69 Davison v. DeFreest, 3 Sand. Ch. 456 481, 482 Dawson v. Parsons, 10 Misc. 428 77, 249, 265 Day v. Reynolds, 23 Hun, 131 ; 11 W. D. 196 542 DeForest v. Farley, 62 N. Y. 628; 1 W. D. 86; aflfg. 4 Hun, 640 116 130, 445 DeJong v. Couch, 32 A. D. 625 57 Delafield v. James, 18 Abb. Pr. 221; 27 How. Pr. 357 12, 504 Delavan v. Duncan, 49 N". Y. 485 ; see 4 Hun, 29 52, 58, 488 Delmonieo v. Guillaume, 2 Sand. Ch. 366 264 Demarest v. Friedman, 61 A. D. 576 362 Dunham v. Stillwell, 3 Robt. 653 11 Dennerlein v. Dennerlein, 111 N. Y. 518; aflfg. 46 Hun, 561; 28 W. D. 110; 12 S. R. 640; also 47 Hun, 635; 14 S. R. 932 130, 370, 411 Des Caso v. Stiles, 161 A. D. 871 532 DeVeaux College for Orphan and Destitute Children v. Highlands Land Co., 63 A. D. 461 173, 312, 325 Dias & Burn v. Glover, Hoflf. 71 257, 345, 456, 521 Di Chiro v. O'Byrne, 163 A. D. 109 48] Dickinson v. Dickey, 14 Hun, 617; 7 W. D. 207, D. v. Dickie; app. disd. 76 N. Y. 602; 8 W. D. 351 114 Dieterlen v. Miller, 114 A. D. 40 ,' , . . 317 Dietz v. Farish, 12 J. & S. (44 Super.) 190; 53 How. Pr. 217; aflfd. 79 N. Y. 520; 9 W. D. 479 19, 350 Dime Savings Bank of Brooklyn v. Crook, 29 Hun, 671 482, 483 Dingley v. Bon, 130 N. Y. 607; aflfg. 5 Silv. Supm. 510; 8 Supp. 935. 379 Disbrow v. Folger, 5 Abb. Pr. 53 71, 73, 79, 107, 108, 122, 164, 535 Dixon V. Oozine, 114 Supp. 615; 64 Misc. 602; aflfd. 134 A. D. 921, on opin. below; aflfd. 202 N. Y. 554, no opin 28, 246, 439 Dixon V. Rice, 16 Hun, 422 249 265 492 Dodd V. Neilson, 90 N. Y. 243; 15, W. D. 335; rvsg. 27 Hun, 102. . . .' 125 306 Doe V. Mclntyre, 4 Duer, 171 262 Table of Cases Cited. xxxvii Page Dolan, Matter of, 88 N. Y. 309; 14 W. D. 512; affg. 2 Dem. 611, note; rvsg. 26 Hun, 46 133, 134, 135, 136, 137, 139, 472 Boll V. Ingram, 8 S. R. 253; 26 W. D. 565; 44 Hun, 624 310, 377 Doll V. Pizer, 96 A. D. 194 200, 221, 349 Dominiek v. Michael, 4 Sandf. 374 176, 182, 188, 191, 246, 248, 261 264, 388, 447, 448, 504, 531 Donath v. Germania Land Co., 25 Misc. 641 246, 306 Donnelly v. Wight, 192 N. Y. 561; affg. 120 A. D. 875 302, 361 Doody V. Hollwedel, 22 A. D. 456 40, 289, 293, 346, 397, 417 Dooper v. Noelke, 5 Daly, 413 184, 346 Doremus v. Doremus, 66 Hun, 111; 21 Supp. 13 10, 109, 123, 240 251, 383, 453, 454 Dorlon v. Forrest, 101 A. D. 32 538 Doty V. Miller, 43 Barb. 529 537 Douw V. Keay, 16 Misc. 192 129 Downes v. Dimock & Finok Co., 75 A. D. 513 277, 281, 283 Downes y. Wenninger, 207 N. Y. 286; rvsg. 150 A. D. 914. .129, 402, 425 Downey v. Serb, 185 N. Y. 427; affg. 102 A. D. 317 6, 8, 27, 101, 223 Downing v. Jones, 11 Daly, 245 287 Downs V. Lehman, 123 A. D. 11 12, 526 Doyle V. John E. Olson Realty Co., 132 A. D. 200 311, 323, 533 Doyle V. Mulvihill, 16 W. D. 361 ; 28 Hun, 641 179, 211 Drake v. Shiels, 7 Supp. 209 45, 271, 285 Draper v. Montgomery, 108 A. D. 63 190 Dresser v. Travis, 87 A. D. 632; affd. 177 N. Y. 376, Matter of Coogan 287, 438 Dresser v. Travis; see Matter of Koss. Driscoll V. Carroll, 127 A. D. 265; see 147 A. D. 522, D. v. Healy; affd. 210 N". Y. 558, no opin 361, 369, 378 Driscoll V. Healy; see D. v. Carroll. Droge V. Cree, 27 J. & S. (59 Super.) 271; 14 Supp. 300. . .175, 378, 383 Duchardt v. Cassidy, 70 A. D. 102 169 Duer V. Dowdney, 11 S. R. 301 116, 455 Duffy V. Durant Land Improvement Co., 78 Hun, 314 144 Dunham v. Minard, 4 Paige, 441 15, 123, 301, 360, 361 Dunlop V. Mulry, 83 Supp. 1104; affd. 85 A. D. 498 286, 288, 368 Dunn V. Huether, 64 Hun, 18; 45 S. R. 830; 22 Civ. Proc. 118 245 250, 251 Dunshee v. Goldbacher, 56 Barb. 579; 8 Abb. Pr. N. S. 439. 175 Dwork V. Weinberg, 120 A. D. 507 59 Dworsky v. Arndtstein, 29 A. D. 274 165, 251, 349, 363, 364 Dwyer v. J>wyeT, 13 Abb. Pr. N. S. 269 132 Dyker Meadow Land & Improvement Co. v. Cook, 159 N. Y. 6 ; affg. 3 A. D. 164 8, 14, 296, 297, 339, 350 Eagle Fire Ins. Co. v. Cammet, 2 Edw. 127 126 Earl V. Campbell, 14 How. Pr. 330 426 435 Earle v. Barnard, 22 How. Pr. 437 103 251 389 xxxviii Table of Cases Cited. Page Eastman v. Home, 141 A. D. 12; aflfd. 205 N. Y. 486 12, 13, 327, 543 Easton v. Pickersgill, 55 N. Y. 310 500 Ebert v. Hanneman, 69 Misc. 223 75, 294, 303, 335, 330 Ebling v. Dreyer, 149 N. Y. 460; rvsg. 79 Hun, 319 25, 38, 78 116, ?47, 255 Eckel V. Spitzer, 58 Misc. 467 • 323 Eddy V. Davis, 116 N. Y. 247; affg. 23 W. D. 468 49, 51, 53 Edelstein v. Hays, 50 Misc. 130 66 ■Edwards v. Farmers' Fire Ins. Co., 21 Wend. 467 435 Eells V. Lynch, 8 Bosw. 465 174, 227 Egan V. Kieferdorf, 16 Misc. 385; 38 Snpp. 81 289, 332, 538 Egelhoff V. Simpson, 50 A. D. 595 413 Egerton's Administrator v. Conklin, 25 Wend. 224; afifg. 21 Wend. 432 191, 195 Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10; affg. 89 Hun, 120 524, 540, 541 Biokwort v. Powers, 17 Supp. 137; 62 Hun, 622 427, 430, 492 Eiseman v. Josephthal, 71 Misc. 288 298, 480 Elder v. Bogardus, Lalor's Supp. 116 527, 540, 541 Elfenheim v. Von Hafen, 3 Misc. 626 529 Elinsky v. Berger, 87 A. D. 584 327, 477 Elliott V. Asiel, 120 A. D. 829 484 Ellis V. Hoskins, 14 Johns. 363 50, 300 Ellsworth V. Cuyler, 9 Paige, 418 ,43, 450, 464 Elterman v. Hyman, 192 N. Y. 113; rvsg. 117 A. D. 519 295, 304 305, 506, 507 Elterman v. Hyman, 141 A. D. 208 304, 473, 478, 507 Elwood V. Goldman, 158 A. D. 805 293 Ely V. Matthews, 128 A. D. 513; rvsg. 58 Misc. 365, E. v. Mathews. .127 268, 330, 499, 500 Emanuel v. Ennis, 16 J. & S. (48 Super.) 430; 16 W. D. 430 163 Emens v. St. John, 79 Hun, 99 9, 174, 198 Empire CSty Savings Bank v. Silleok, 98 A. D. 139; affd. 180 N. Y. 541, no opin 93 Empire Realty Corporation v. Sayre, 107 A. D. 415 334, 510, 513 Emrich v. White, 102 N. Y. 657 ; 1 Silv. C. A. 62 ; 23 W. D. 444 ; 1 S. R. 643; affg. 66 How. Pr. 154 , 46, 64, 65, 367 English V, Ripley, 24 W. D. 153; 1 S. R. 762; 40 Hun, 640 292 Ennis v. Brown, 1 A. D. 22 77, 207, 257, 313, 356, 397 Epstein v. Rockville Centre Improvement Co., 164 A. D. 177. . . .529, 542 Equitable Life Assurance Society v. Toplitz, 69 Misc. 457 292, 293 Evangelical Lutheran Church of the Epiphany v. Rabell, 141 A. D. 925 262 Evans v. Weinstein, 124 A. D. 316; affd. 195 N. Y. 549, no opin. . 89 91, 93 Evergreens, Matter of, 47 N. Y. 216 25 78 Everitt v. Conklin, 90 N. Y. 645; 15 W. D. 540, Everett v. C. . .299, 504 Table of Cases Cited. xxxix Page Everson v. Kirtland, 4 Paige, 628 47, 417, 519 Ewing V. Wightman, 167 N. Y. 107; affg. 52 A. D. 416 51, 53 Eyclesheimer v. Hunter, 162 A. D. 643 212 Fagen v. Davison, 2 Duer, 153 10, 289, 522, 527 Faile v. Crawford, 30 A. D. 536 173, 193, 195, 199, 232, 386, 522 Faile v. Crawford, 34 A. D. 278 326 Pales, Matter of, 33 A. D. 6H ; affd, 157 N. Y. 705, no opin. . . .371, 374 Falvey v. Bridges, 15 Supp. 878; 61 Hun, 626; affd. 133 N. Y. 663, no opin 205, 280 Farley v. Secor, 167 A. D. 80 67, 227, 492, 517, 518 Farmers' Loan & Trust Co. v. Dickson, 17 How. Pr. 477; 9 Abb. Pr. 61 103, 104, 125, 345, 448, 451 Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C. 219 148, 192, 402 Farrar v. McCue, 89 N. Y. 139; 14 W. D. 556; rvsg. 26 Hun, 477. . 187 188, 457 Farrell v. Noel, 17 A. D. 319 116, 340, 359 Fearing v. Irwin, 55 N. Y. 486 ; affg. 4 Daly, 385 ; see 5 Daly, 383 . . 40 41, 277, 278, 279, 284, 352, 533 Feder v. Rosenthal, 62 Misc. 610 299 Feely v. Buckley, 28 Hun, 451 30 Feiner v. Reiss, 98 A. D. 40 ' 265, 474 Feist V. Block, 115 A. D. 211 63, 304, 305, 378, 526 Felix V. Devlin, 90 A. D. 103; 86 Supp. 12 ! . . 14, 27, 30, 372, 384 422, 423, 514, 515 Feller v. Mitchell, 53 Misc. 486 427, 430 Feltenstein v. Ernst, 49 Misc. 262; aflfd. 113 A. D. 903, no opin. .304, 378 Fenn, Estate of, 8 Oiv. Proc. 206 138 Ferris v. Gibson, 4 Edw. 707 220, 224 Ferris v. Plummer, 42 Hun, 440; 25 W. D. 467; 6 S. R. 52; reargu- ment ordered, 8 S. R. 905' 29, 85 Ferris v. Plummer, 46 Hun, 515; 28 W. D. 123; 13 Civ. Proc. 389; 12 S. R. 652 ; rvsg. 42 Hun, 440 85 Ferry v. Sampson, 112 N. Y. 415; rvsg. 17 S. R. 428; 1 Supp. 872 15, 365 Fetes V. Volmer, 5 Silv. Supm. 408; 28 S. R. 317; 8 Supp. 294: 490 Field, Matter of, 131 N. Y. 184; aflfg. 17 Supp. 19; 62 Hun, 622, Fields V. Dessar 38, 40, 87, 143 Finch V. Gillespie, 122 A. D. 858 258, 359 Finck V. Bauer, 40 Misc. 218 319, 538 Fink V. Wallach, 109 A. D. 718; rvsg. 47 Misc. 247 35, 95 First Presbyterian Society, Matter of, 106 N. Y. 251; 8 S. R. 679, F. P. Church of Buffalo, In re 204, 267 Fish V. Coster, 28 Hun, 64; 15 W. D. 482; affd. 92 N. Y. 627, on opin. below 182, 192 Fisher v. Wilcox, 77 Hun, 209 26, 27, 34, 228 xl Table of Cases Cited. Page Fitzpatrick v. Sweeney, 56 Hun, 159; 9 Supp. 219; affd. 121 N. Y. 707, on opin. below 412 556 & 558 Fifth Avenue Co. v. Lotus Club, 129 A. D. 339 335, 338 Flanagan v. Fox, 6 Misc. 132; overruling 3 Misc. 365; rvsg. 5 Misc. 589; affd. 144 N. Y. 706, on opin. below 12, 107, 117 Flanagan v; Thomas, 166 A. D."941 84, 119, 130, 349,' 351 Fleming v. Burnham, 100 N. Y. 1 ; 22 W. D. 266 ; rvsg. 36 Hun, 456 ; 22 W. D. 26 6, 10, 19, 23, 29, 70, 170, 189, 239, 360 Fletcher v. Button, 4 N. Y. 396; affg. 6 Barb. 646 47, 434, 515 Fletcher v. 416 West 33d Street Realty Co., 152 A. D. 943; affg. 77 Misc. 280 130, 295 Floeting v. Horowitz, 120 A. D. 492 420 Floyd V. Clark, 7 Abb. N. 0. 136; 1 Mo. 'L. Bull. 86 316 Foland v. Italian Savings Bank of the Oity of N«w York, 123 A. D. 598 ' 286,485 Folliard v. Wallace, 2 Johns. 395 433, 465, 527 Foote V. West, 1 Den. 544 369 Forbes v. Reynard, 113 A. D. 306; affg. 49 Misc. 154 259, 260, 301 302, 361 Ford V. Belmont, 7 Robt. 97 ; affd. 7 Robt. 508 122, 310 Fotd V. Schlosser, 13 Misc. 205 243, 410 Forster v. Scott, 136 N. Y! 577; affg. 17 Supp. 479; 28 J. & S. (60 Super.) 313 38, 40, 279 Forster v. Winfield, 142 N. Y. 327; rvsg. 3 Misc. 435 184, 206, 257 Forsyth v. Leslie, 74 A. D. 517 63, 300, 301, 341, 346, 361, 469 Foster v. Civill, 20 Hun, 282 127, 310 Fourth Presbyterian Church v. Steiner, 79 Hun, 314 323, 491 Fowler v. Manheimer, 70 A. D. 56; affd. 178 N. Y. 581, no opin.. . . 6 233, 339, 359, 364 Foy V. McGarry, 160 A. D. 329 19, 443 Frain v. Klein, 18 A. D. 64 468, 478, 490 Francis v. Watkins, 72 A. D. 15; affd. 171 N. Y. 682, no opin.. .114, 373 Frank v. Frank, 123 A. D. 802 16, 304 Frank v. Schmidt, 40 Hun, 640; 1 S. R. 760; 24 W. D. 371, Franck V. Schmitt 189 Franklin v. Di Clementi, 123 A. D. 664 119, 130 Franklin v. Osgood, 14 Johns. 527; affg. 2 Johns. Oh. 1. . , .46, 315, 386 Franklin National Bank v. Lewis, 26 Misc. 75 500, 501 Freeborn v. Wagner, 4 Keyes, 27; 2 Abb. Dec. 175; affg. 49 Barb. 43 213, 225, 226 Freedman v. Oppenheim, 80 A. D. 487; see 187 N. Y. 101 234, 417 Freedman v. Oppenheim, 187 N". Y. 101; rsvg. 102 A. D. 622; see 80 A. D. 487 233, 234, 351, 353 Freedman v. Safran, 131 A. D. 675 402 Freeman v. Ahearn, 64 A. D. 509 132 Freilieh v. Tucker, 68 Misc. 318 539 Freyer; see Fryer. Table of Cases Cited. xli Page Friedman v. Dewes, 1 J. & S. (33 Super.) 450 50 Frost V. Hirschberg, 17 W. D. 224; 29 Hun, 480 412 Fruhauf v. Bendheim, 127 N. Y. 587; affg. 3 Silv. Supni. 91; 6 Supp. 264 287, 288, 314 Fryer v. Rockefeller, 63 N. Y. 268 ; 1 W. D. 456, Freyer v. R. ; afifg. 4 Hun, 800 69, 340, 353, 360, 368, 385, 395, 399, 416, 450 Puhr V. Cronin, 82 A. D. 210 235, 405 Fuller V. Hubbard, 6 Cow. 13 47, 64 Fuller V. Scribner, 76 N. Y. 190; 8 W. D. 494, F. v. Purser; affg. 16 Hun, 130 103 Fulton V. Edgar, 19 W. D. 429 ; 33 Hun, 660 198 Furst V. Bohl, 133 A. D. 627 175, 226, 230, 250 Gale V. Arcber, 42 Barb. 320 400, 485 Gallagher v. Quinlan, 10 A. D. 402 400 Gardner v. Dembinsky, 52 A. D. 473; aflfd. 170 N. Y. 593, no opin.. 197 379, 428, 430 Garibaldi Realty & Construction Co. v. Santangelo, 164 A. D. 513. . 420 422, 423 Garloek v. Lane, 15 Barb. 359 43, 54, 56 Garnar v. Bird, 57 Barb. 277 458 Garrett v. Coben, 63 Misc. 450; 117 Supp. 129 485, 486 Gaskin v. Meek, 42 N. Y. 186; 8 Abb. Pr. N. S. 312; affg. 55 Barb. 259; 7 Abb. Pr. N. S. 1 , G. v. Anderson 37, 39 Gatling v. Central Spar Verein, 67 A. D. 50 538, 539 Gay V. Ulrichs, 136 A. D. 809 97 Gazley v. Price, 16 Johns. 267 47 Gearty v. Mayor, 49 How. Pr. 33 157, 159, 346, 358 Gebhard v. Addison, 87 A. D. 375 314, 320 Geffin V. Sehneidler, 105 Supp. 1035; affd. 118 A. D. 907, GeflFen v. Schmeidler, no opin 54, 328 Georgi, Matter of, 44 A. D. 180; affd. 162 N. Y. 660, on opin. be- low 137, 138 Georgi, Matter of, 35 Misc. 685 ! 106, 115, 133, 136, 137 German-American Real Estate Title Guarantee Co. v. Meyers, 32 A. D. 41. 40, 271, 272, 274, 328, 404, 530, 536 German Savings Bk. v. Muller, 10 W. D. 67; 21 Hun, 586, Germania S. B. V. M 127 Gerry v. Post, 13 How. Pr. 118 117, 363 Gerzog Davidoff Construction Co. v. Levin, 124 A. D. 904 525 Gibert v. Peteler, 38 N. Y. 165; 6 Trans. App. 329; approving 38 Barb. 488 43, 78, 311, 321, 324, 491, 493, 507, 514 GignouK V. Stafford, 42 Hun, 426; 6 S. R. 56; 25 W. D. 162; affd. 118 N. Y. 666, no opin., Matthiessen v. S 147, 148 Gilder v. Davis, 137 N. Y. 504 537 Gillilan v. Swift, 14 Hun, 574; 7 W. D. 116, Gilligan v. S 396 Gilsow V. Schmidt, 156 A. D. 911 27, 532 Glawatz v. People's Guaranty Search Co., 49 A. D. 465 543 xlii Table of Cases Cited. Page Glenn v. Rossler, 156 N. Y. 161 ; afifg. 88 Hun, 74 51 Glover v. Haws, 19 Abb. Pr. 161 note 79, 107 Goebel v. Iffla, 111 N. Y. 170; affg. 48 Hun, 21; 15 S. R. 256; affg. 10 S. E. 726 255, 438 Goerlitz v. Malawista, 56 Hun, 120; 8 Supp. 832; affd. 130 N. Y. 688, no opin 212, 213 Goetz V. Ballou, 64 Hun, 490; 19 Supp. 433 222 Goldman v. Banta, 12 Supp. 346 ; 58 Hun, 609 151, 348 Goldman v. Kennedy, 49 Hun, 157; 17 S. P. 433; 1 Supp. 599; 21 Abb. N. C. 362 ; 14 Civ. Proc. 392 151, 346, 358 Goodman v. Schwab, 136 A. D. 583 276, 507, 542 Goodrich v. Pratt, 114 A. D. 771 315, 317 Goodrich v. Russell, 42 N. Y. 177 161, 253 Goodwin v. Crooks, 58 A. D. 464; affg. 33 Misc. 39 9, 10, 72, 340' 350, 351, 356, 360 Gorman v. Gorman, 40 A. D. 225; aflfd. 159 N. Y. 571, on opin. below. 234 Gotendorf v. Goldschmidt, 83 N. Y. 110; 11 W. D. 295 80, 107 Gotthelf V. Stranahan, 138 N. Y. 345; modifying 19 Supp. 161. .297, 495 Gouverneur v. Elmendorf, 5 Johns. Oh. 79 367, 482 Grabfelder v. Tallman, 36 Misc. 247 512, 521 Grace v. Bowden, 10 A. D. 541 436 Grady v. Ward, 20 Barb. 543 11, 71, 125, 232; 233, 355, 443, 456 Graham v. Ackerly, 120 A. D. 430 184, 207, 209 Graham v. Bleakie, 2 Daly, 55 113, 368, 503 Graham v. Fountain, 2 Supp. 598 126, 209 Graham v. Lawyers' Title Ins. Co., 20 A. D. 440 100, 128, 145 Granger v. Olcott, 1 Lans. 169 46, 152, 367, 484 Green v. Hernz, 2 A. D. 255; aflfg. 14 Misc. 474, G. v. Heruz 62, 310 Green v. Squires, 20 Hun, 15 ; 9 W. D. 332 95 Greenblatt v. Hermann, 144 N. Y. 13; rvsg. 69 Hun, 298 136, 359 472, 474, 479 Greenby v. Cheevers, 9 Johns. 126 50, 300 Greenfield v. Beaver, 30 Misc. 366 293 Greenfield v. Mills, 123 A. D. 43 ' 299, 301, 422, 447 Greenland v. Waddell, 116 N. Y. 234; rsvg. 5 St. Rep. 835 182, 193 196, 198, 227, 231 Green-Shrier Co. v. State Realty & Mortgage Co., 129 A. D. 581; rvsd. 199 N. Y. 65' • 284, 510 Greenspan v. Saladino, 126 A. D. 331. . .273, 275, 298, 307, 337, 450, 498 Greer v. Sankston, 26 How. Pr. 471 248, 254 GriflBn v. Baust, 26 A. D. 553 259, 262, 287, 333, 357, 376 Grifath V. Kempshall, Clarke, 571 481, 482 Grillenberger v. Spencer, 7 Misc. 601 59, 247, 258, 362, 391, 451 455, 485, 486, 488 Griswold v. Fowler, 6 Abb. Pr. 113 306 Groden v. Jacobson, 129 A. D. 508 305, 478. 485 Gross V. Conner, 114 A. D. 32 512 528 Table of Cases Cited. xliii Page Gross V. Rowley, 147 A. D. 529 410 Grosso V. Marx, 45 Misc. 500 ; 92 Supp. 773 148, 387 Guelioh v. Clark, 3 T. & C. 315 ,. . . 65, 167 Guernsey v. Van Riper, 126 A. D. 368 101, 223 Guggenheimer v. Sayre, 21 S. R. 255; 4 Supp. 22; 51 Hun, 638. .. . 199 SOO, 502 Guggenheimer v. Sullivan, 12 W. D. 541 ; 24 Hun, 659 227 Guilbert y. Guilbert, 68 Mise. 405 121, 218 Guli V. West, 65 Hun, 1; 19 Supp. 757 288, 470, 522 Gulick V. Griswold, 160 N. Y. 399; affg. 14 A. D. 85 197, 199 Guyer v. Raymond, 8 Misc. 606 81 Guynet v. Mantel, 4 Duer, 86 32, 42, 470, 483 Haas V. Kuhn, 67 Hun, 435 185, 322 Haberman v. Baker, 128 N. Y. 253. .. .8, 70, 255, 278, 282, 284, 361, 431 495 Hackett v. Huson, 3 Wend. 249 63, 64, 399 Haendle v. Stewart, 84 A. D. 274 184, 264 Haflfey v. Lynch, 143 N. Y. 241; rvsg. 68 Hun, 507; disapproving 19 Supp. 59 435, 436, 437, 495, 497, 498 Haifey v. Lynch, 193 N. Y. 67; modifying 119 A. D. 885; also 38 Misc. 256 , 514, 515, 521 Hagan v. Drucker, 90 A. D. 28 .' 16, 345, 351 Hagemeyer v. Saulpaugh, 97 A. D. 535; 34 Civ. Proc. 66 185, 227 Haight, Matter of, 14 Hun, 176 139 Hald v. Claffy, 131 A. D. 251 65 Hall V. Nelson, 23 Barb. 88 124 Hall v. Partridge, 10 How. Pr. 188 71, 73, 123, 164, 456 Hallett V. Hallett, 2 Paige, 15 77, 78 Halpern v. Fisch, 116 A. D. 479 387 Halstead v. Atterbury, 105 A. D. 527 320, 322 Hamerachlag v. Duryea, 58 A. D. 288; affg. 31 Misc. 678; affd. 172 N. Y. 622, no opin 237 Hamershlag v. Duryea, 38 A. D. 130 237, 362 Hamilton v. New York Stock Exchange Building Co., 20 Hun, 88 . . . 197 Hammer Realty Co. v, Moran, 73 Misc. 135 140, 141, 143 H. & H. Reiners v. Niederstein, 55 A. D. 80 456 Hardenbergh v. McCarthy, 130 A.-D. 538 25, 27, 229, 231 Hardie v. Andrews, 13 Civ. Proc. 413 142, 143, 398 Harper v. Dowdney, 2 Silv. C. A. 222; 113 N. Y. 644; aflfg. 47 Hun, 227; 14 S. R. 261 297 Harrigan v. Golden, 41 A. D. 423 272 Harrington v. Higgins, 17 Wend. 376 50 Harris v. Larkins, 22 Hun, 488 119, 211 Harris v. Strodl, 132 N. Y. 392; affg. 10 Supp. 859 198 xliv Table of Oases Cited. Page Harrison v. Piatt, 35 A. D. 533; affd. 158 N. Y. 712, on opin-. be- low 242, 329 Harsha v. Reld, 45 N. Y. 415 271, 313, 493 Hartigan v. Smith, 19 A. D. 173 34, 304, 389 Hartley v. James, 50 N. Y. 38 57, 232, 248, 261, 263, 448, 504 Hartwell v. Eiley, 47 A. D. 154 379, 542 Hasbrook v. Paddock, 1 Barb. 635 64, 157, 269, 369, 382, 467 Hasbronck v. Tappen, 15 Johns. 200 299 Hatt V. Hagaman, 12 Misc. 171 27, 194 Haven v. Daly, 9 J. & S. (41 Super.) 348 205 Haverstick v. Duffenburgh, 2 Edmonds, 463 223 Hayes v. Kershow, 1 Sand. Ch. 258.. 28, 215, 219, 230, 398 Hayes v. Nourse, 114 N. Y. 595; rvsg. 8 S. R. 397.. 29, 310, 381, 383 434, 436, 460 Hayward v. Wemple, No. 1, 152 A. D. 195 300 Heasty v. Lambert, 98 A. D. 177 26, 532 Heaton v. Griswold, 70 Misc. 326 417 Hebberd v. Lese, 107 A. D. 425 213, 218 Hebron Society v. Schoen, 60 How. Pr. 185; 3 Mo. L. Bull. 35, Hebrew Soc. v. S 127, 309 Heck V. Volz, 14 S. R. 409; 47 Hun, 635; affd. 120 N. Y. 663, no opin: 23, 166 Hecker v. Sexton, 43 Hun, 593 ; 6 S. R. 677 108, 422 Hecker v. Sexton, 6 S. R. 680 ; 43 Hun, 640 365 Hegeman v. Stearns Realty Co., 117 A. D. 754; ^8 Civ. Proc. 429, H. V. Sterns -R. Co.; aflfd. 192 N. Y. 557, no opin 142, 356 Heiberger v. Karfidl, 202 N. Y. 419; affg. 134 A. D. 935 8, 21, 447 Heidgerd v. Reis, 135 A. D. 414 125, 128 Heiferman v. Scholder, 134 A. D. 579 184, 191, 477 Heim v. Schwoerer, 115 A. D. 295; affg. 51 Misc. 97; affd. 187 N. Y. 543, no opin 317 Heimbinder v. Sullivan, 129 A. D. 589 477 Heimburg v. Ismay, 3 J. & S. (35 Super.) 35 516 Heller v. Cohen, 154 N. Y. 299 ; affg. 15 Misc. 378 ; rvsg. 9 A. D. 465 8, 14, 21, 71, 232, 233, 403, 442, 459, 531, 532 Hellreigel v. Manning, 97 N. Y. 56; 19 W. D. 543 21, 394 Hemmer v. Hustace, 51 Hun, 457; 3 Supp. 850; affg. 14 Civ. Proc. 254 27, 132 Hendricks v. Stark, 37 N. Y. 106 ; 4 Trans. A,pp. 146 336 Hendrickson v. Ladd, 2 Dem. 402 135 Hening v. Punnett, 4 Daly, 543 116, 446, 466, 512, 521 Henretty v. McGuire, 6 W. D. 393 48 Herbert v. Smith, 6 Lans. 493.,.. 97, 108, 115, 163, 300, 344, 359, 429 438, 453, 455, 460 Herring v. Berrian, 23 J. & S. (55 Super.) 110; 8 S. R. 124; affd. 107 N. Y. 632, no opin 292, 442 Table of Cases Cited. xlv Page Herriot v. Prime, 155 N. Y. 5; affg. 87 Hun, 95 199 Hersee v. Simpson, 154 N. Y. 496; affg. 20 A'. D. 100 211 Hevia V. Lopardo, 127 A. D. 189 477, 538 Hewison v. Hoffman, 15 Daly, 176; 4 Supp. 621 57, 513 Heymann v. Steich, 134 A, D. 176; affg. 114 Supp. 603, Hpyman V. S.; affd. 201 N. Y. 578, no opin 44, 332, 336 Hickey v. Peterson, 9 Supp. 917; 5 Silv. Supm. 490; 55 Hun, 610, H. V. Petersen 192 Hieks V. Cochran, 4 Edw. 107 77, 101, 248, 256 Hioksville & Cold Spring Br. R. R. Co. v. Long Island R. R. Co., 48 Barb. 355 ' 46, 65, 497, 527 Higbie v. Westlake, 14 N. Y. 281 139, 536 Higgins V. Eagleton, 155 N. Y. 466; rvsg. 13 Misc. 223. .. .9, 10, 51, 54 275, 471, 472, 485, 488, 505 Hill V. Flatbush Consumers' Ice Co., 143 A. D. 559 75, 132 Hill V. Ressegieu, 17 Barb. 162 11, 47, 66, 248, 493 Hilliker v. Bast, 64 A. D. 552 219, 220 Hilton V. Sowenfeld, 53 Misc. 152 218, 264 Hinckley v. Smith, 51 N. Y. 21 56 Hirsch v. Livingston, 3 Hun, 9; 5 T. &, C. 263; 48 How. Pr. 243. . . 129 Hirth V. Zeller, 108 A. D. 198 438, 458 Hoag V. Owen, 57 N. Y. 644 424 Hoar V. Hoar, 143 A. D. 941 108, 110, 112, 450 Hobbs V. Scott, 122 A. D. 399 154 Hochstein v. Vanderveer Crossings, Inc., No. 1, 150 A. D. 118.. 512, 515 Hochstein v. Vanderveer Crossings, Inc., No. 2, 150 A. D. 121 515 Hodges V. Walker, 76 A. D. 305 126 Hoepfner v. Sevestre, 10 Supp. 51; 56 Hun, 640 167, 207; 209, 236 Hogan V. Hoyt, 37 N. Y. 300; 4 Trans. App. 409 449, 480 Holden v. Sackett, 12 Abb. Pr. 473 75, 286, 287, 444, 446 Holly V. Gosling, 3 E. D. Smith, 262 538 Holly V. Hirsch, 135 N. Y. 590; rvsg. 63 Hun, 241; 17 Supp. 821 25, 35, 65, 71, 171 Holmes v. Bush, 35 Hun, 637 290, 291 Holmes v. Holmes, 12 Barb. 137 ; affd. 9 N. Y. 525 58, 250, 524 Home Ins. Co. v. Head, 30 Hun, 405; 18 W. D. 229 86, 266 Hoock V. Welch, 155 A. D. 947 192 Hopkins, Matter of, 33 A. D. 615 140, 141 Hopkins v. Hopkins, 1 Hun, 352; 3 T. & C. 527 211 Hornberger v. Miller, 28 A. D. 199; affd. 163 N. Y. 578, no opin.. . 166 167, 256, 267, 341, 364 Horton v. Bauer, 129 N. Y. 148 425, 519 Horton v. Childs, 4 Silv. Supm. 431; 7 Supp. 570; see 129 N. Y. 148 336, 519 Hotchkiss V. Clifton Air Cure, 2 Abb. Dec. 406; 4 Keyes, 170 ^ 502 xlvi Table of Cases Cited. Page Hough V. Baldwin, 50 Misc. 546; see 53 Misc. 284 328 Houghtaling v. Lewis, 10 Johns. 297 48 Hover v. Hover, 25 Misc. 95; 28 Civ. Proc. 192 483 Hovey v. Chisholm, 56 Hun, 328; 9 Supp. 671 27, 174, 178, 371 Howell V. Donegan, 74 Hun, 410 432 Hubbard v. Housley, 43 A. D. 129; affg. 27 Misc. 276; affd. 160 N. Y. 688, no opin 173, 465 Huber v. Case, 93 A. D. 479 186, 214, 265, 348 Hugel V. Habel, 132 A. D. 327; rvsg. 56 Misc. 402.. 304, 488, 496, 507 Hulse V. Hulse, 17 Civ. Proc, 92 123 Hudson V. Swift, 20 Johns. 24 55 Hume V. Randall, 141 N. Y. 499; rvsg. 65 Hun, 437 202, 224 Hun V. Bourdon, 57 A. D. 351 60, 155, 469, 488 Hunnier v. Rogers, 55 Barb. 85; affd. 42 N. Y. 531, Kinnier v. R.. . 176 Hunt V. Alexander, 19 A. D. 76 431, 438 Hutchings v. Baldwin, 7 Bosw. 326 177, 182 Hutchinson v. Chapman, 112 N. Y. 675 113 Hutchinson v. Wall, 24 J. & S. (56 Super.) 104; 4 Supp. 717; affd. 112 N. Y. 675, H. v. Chapman 112, 113 Hutton V. Webber, 28 J. & S. (60 Super.) 247; 17 Supp. 463; affd. 137 N. Y. 615, on opin. below, H. v. Weber 15, 416 Hyatt V. Aguerro, 24 J. & S. (56 Super.) 63; 28 W. D. 513, H. v. Aguero; 1 Supp. 339; 14 Civ. Proc. 286, H. v. Arguero; 17 S. R. 746, H. V. Nugero 190 Hyatt V. Seeley, 11 N. Y. 52 66, 113, 247, 417 Ingalls V. Hahn, 47 Hun, 104 ; 13 S. R. 191 2, 58 I'ngalls V. Hahn, 36 S. R. 770; 12 Supp. 786 524 Ingersoll v. Mangam, 84 N. Y. 622; 61 How. Pr. 149; 12 W. D. 218; 1 Civ. Proc. 151; affg. 24 Hun, 202; 11 W. D. 494, I. v. Mongon. 7fl 107 Interborough Rapid Transit Co. v. Littefield, 166 A. D. 567.. 271, 275 374 Irving V. Campbell, 121 N. Y. 353; rvsg. 24 J. & S. (56 Super.) 224; 4 Supp. 103 : 417 Jackson v. Babcock, 16 N. Y. 246 39, 153 Jackson v. Bradhurst, 16 Misc. 149; 25 Civ. Proc. 228 122, 310 Jackson v. Edwards, 22 Wend. 498; affg. 7 Paige, 386 28, 31, 33 53, 204, 251, 486, 487 Jackson v. Walters, 86 A. D. 470 249 Jacobs V. Fowler, 135 A. D. 713 362, 446 Jacobs V. Morrison, 136 N. Y. 101 382, 432 James V. Burchell, 82 N. Y. 108; 10 W. D. 517; affg. 7 Daly, 531. . 48 52, 504 James v. Hubbard, 1 Paige, 228 150 James v. Mayor, 25 W. D. 214; 4 S. R. 86; 41 Hun, 645. .158, 161, 292 „ Table of Cases Cited. xlvii Page Janpole v. Lasky, 94 A. D. 353; affd. 184 N. Y. 539, on opin. below 222 Jarvis v. Baboock, 5 Barb. 139 206, 228 Jay V. Wilson, 91 Hun, 391; affd. 158 N. Y. 693, on opin. below 12 376, 540 Jencks v. Kearney, 17 Supp. 143 , . . 369, 426, 487, 488 Jenkins v. Fahey, 73 N. Y. 355; 7 W. D. 148; rvsg. 11 Hun, 351. . 86 119, 139, 255, 444, 445, 451 Jennings v. Jennings, 2 Abb. Pr. 6 452, 490 Jerome v. Scudder, 2 Robt. 169 52, 63, 488, 493 John, Estate of, 21 Civ. Proc. 326 136 John's Estate, In re, 18 Supp. 172 133, 136 Johnson v. Duncan, 2 How. Pr. N. S. 366 61, 310, 377, 460, 508 Johnson v. Fitzhugh, 3 Barb. Ch. 360 126, 148 Johnson v. Gere, 2 Johns. Ch. 546 482 Johnson v. Reeves, 48 How. Pr. 505 184 Johnson v. Ross, 160 A. D. 866 202 Johnson v. Williams, 22 Supp. 247 ; 67 Hun, 652 400 Johnston v. Garvey, 139 A. D. 659; aflfd. 201 N. Y. 548, on opin. be- low 16, 140, 362, 365, 428, 521 Jones V. Freeman, 22 W. D. 524; 38 Hun, 524 86 Jones V. Gardner, 10 Johns. 266 42, 249, 411, 415 Jones V. Wittner, 79 Hun, 283; affd. 151 N. Y. 649, no opin 505 Jordan v. Poillon, 77 N. Y. 518 9, 24, 26, 68 Josephthal v. Heyman, 2 Abb. N. C. 22 540 Judson V. Wass, 11 Johns. 525 47, 57 Julien V. Lalor, 47 Hun, 164; 14 S. R. 392 146 Kahn v. Chapin, 152 N. Y. 305; affg. 84 Hun, 541 429, 458, 460 497, 534 Kahn v. Hoge, 61 A. D. 147 314, 321 Kahn v. Mount, 46 A. D. 84 236, 320 Kalley v. Baker, 132 N. Y. 1 537 Kanenbley v. Volkenberg, 70 A. D. 97 206, 258, 3«7, 414 Kaplan v. Bergmann, 122 A. D. 876 421 Kapp V. Kapp, 15 S. R. 967 425 Karker v. Haverly, 50 Barb. 79 56 Katz V. Henig, 32 Misc. 672 477 Katz V. Kaiser, 154 N". Y. 294; affg. 10 A. D. 137 243, 244, 301 331, 333, 361 Keating v. Gunther, 10 Supp. 734; affd. 129 N. Y. 659, no opin.. . . 279 , > 300, 321, 465 keitel V. Zimmermann, 19 Misc. 581 164, 294, 300, 331, 340, 341 419, 522 KeUey's Estate, 1 Abb. N. C. 102; 2 W. D. 569, Matter of Kelly. 135, 136 Kelly V. Brower, 42 St. Rep. 758; 4 Silv. C. A. 18; 132 N. Y. 539 memo.; affg. 7 Supp. 752; 5 Silv. Supm,. 283 331, 404, 410 419, 420, 490 xlviii Table of Cases Cited. Page Kelly V. Kelly, 72 A. D. 487 233, 241, 413 Kelly V. Pitcher, 4 Supp. 3 142 Kelso V. Lorillard, 85 N. Y. 177; 12 W. D. 289; affg. 8 Daly, 300. . . 28 229, 231 Kennedy v. Arthur, 18 Civ. Proc. 390; 11 Supp. 661 87, 109, HI, 123 Kennedy v. Hall, 51 Misc. 78; affd. 114 A. D. 913, K. v. HoU 525 Kennedy v. Holl, 52 Misc. 379 148, 149 Kennedy v. Hull, 15 W. D. 95 ; 27 Hun, 318 185, 227 Kennedy v. Lamb, 182 N. Y. 228; 34 Civ. Proc. 326; rvsg. 102 A. D. 429 90, 91, 92 Kennedy V. New York Life Ins. & Trust Co., 101 N. Y. 487; 23 W. D. 278; rvsg. 32 Hun, 35; 18 W. D. 568 89, 91 Kent V. Church of St. Michael, 136 N. Y. 10; aifg. 17 Supp. 946. .. . 222 264, 443, 462, 483 Kent V. Shepard, 115 A. D. 64; affd. 188 N. Y. 566, no opin. . .177, 178 Kerns v. Davenport, 201 N. Y. 583 ; affg. 136 A. D. 898 237 Kerr v. McAneny, 17 W. D. 102; 29 Hun, 484 ' , 190 Kerr v. Purdy, 51 N. Y. 629 54, 526 Kerrigan v. Backus, (69 A. D. 329 283 Kerrigan v. Force, 68 N. Y. 381 ; 4 W. D. 171 ; affg. 9 Hun, 185 ... . 37 39, 114 Ketchum & Sweet v. Evertson, 13 Johns. 359 395 Kidansky v. Peltyn, 118 A. D. 906 395, 434 Kilpatrick v. Barron, 125 N. Y. 751; 4 Silv. 0. A. 347; affg. 54 Hun, 322; 7 Supp. 542, K. v. Burrow; rvsg. 5 Supp. 782 31, 170 King V. Bardeau, 6 Johns. Ch. 38 32, 333, 489, 530 King V. Knapp, 66 Barb. 225; affd. 59 N. Y. 462 113, 332, 422, 424 King V. Knowles, 122 A. D. 414 537 King V. Platt, 37 N. Y. 155; 35 How. Pr. 23; 4 Trans. App. 19; see 2 Abb. Dec. 527 74, 77, 502 Kingsland v. Fuller, 157 N. Y. 507; rvsg. 31 A. D. 313 373, 378 Kinnier v] Rogers, 42 N. Y. 531; affg. 55 Barb. 85, Hunnier v. R.. . 30 176, 185 Kip V. Hirsh, 103 N. Y. 565; 18 Abb. N. C. 167; 25 W. D. 169; 4 S. R. 257; rvsg. 21 J. & S. (53 Super.) 1 30, 31, 147, 172, 355 460, 534 Kipp V. Brandt, 49 How. Pr. 358 377 Kirk V. Kirk, 137 N. Y. 510; disapproving 12 Supp. 326 101, 116 121, 208, 222, 261, 437 Kissam v. Dierkes, 49 N. Y. 602 ig7, 199 Kisssam v. Karlen, 28 W. D. 634; 13 S. R. 561; 47 Hun, 634 199 Kitching v. Shear, 26 Misc. 436 295 Klim v. Sachs, 102 A. D. 44 332, 337, 506 Klingenstein v. Alexander, 57 Misc. 236 54, 327, 497, 506 Knapp V. Conger, 59 N. Y. 635 399 Knapp V. Crane, 14 A. D. 120 132, 279, 302, 305, 377, 382 Table of Cases Cited. xlix Page Knapp V. Knapp, 46 Hun, 190 179 Knapp V. Wallace, 41 N. Y. 477 537 Knee v. Kuykendall, 6 S. R. 1; 42 Hun, 656 9, 27, 326 Kneller v. Lang, 137 N. Y. 589; affg. 63 Hun, 48; 17 Supp. 443. .. . 241 Knevals v. Prince, 10 Supp. 676; 57 Hun, 591, K. v Henry 457 Knight V. Moloney, 4 Hun, 33 33, 250, 502, 520 Koechl V. Gate Development Co., 149 A. D. 239; affd. 205 N. Y. 591, no opin 433 Koepke v. Bradley, 3 A. D. 391; affd. 151 N. Y. 621, on opin. below 120 373 Kohler v. Kohler, 2 Edw. 69 112, 456 Kondolf V. Britten, 160 A. D. 381 172 Koons V. Potter, 105 A. D. 622 11, 232, 346, 349 Kopp V. Kopp, 48 Hun, 532; 1 Supp. 261; 28 W. D. 471 122, 425 Korn V. Lipman, 201 N. Y. 404; 2 C. R. N. S. 158; affg. 141 A. D. 927 97 Kortright v. Storminger, 49 Hun, 249; 16 S. R. 925; 1 Supp. 880. . 187 193 Koss, Matter of, 177 N. Y. 371; affg. 87 A. D. 633, Dresser v. Travis 206, 226 Kountze v. Helmuth, 140 N. Y. 432; affg. 67 Hun, 343 49, 318 320, 331, 375 Kouwenhoven v. Gifford, 143 A. D. 913 482 Kraemer v. Adelsberger, 122 N. Y. 467; rvsg. 23 J. & S. (55 Super.) 246 ; 13 S. R. 265 ; 28 W. D. 65 '. 306 Krainin v. Coffey, 119 A. D. 516; affg. 53 Misc. 6 507 Kranz v. Lewi^, 115 A. D. 106; 37 Civ. Proc. 368 426, 527 Krasnow v. Topp, 128 A. D. 156 327, 529 Krekeler v. Aulbach, 51 A. D. 591; affd. 169 N. Y. 372 161, 313 325, 341, 385, 390 Krekeler v. Thaule, 49 How. Pr. 138 102 Kruger v. Galewski, 13 Misc. 56; affg. 10 Misc. 233 303 Kullman v. Cox, 167 N. Y. 41.1; affg. 42 A. D. 620; approving 26 A. D. 158 431 Kursheedt v. Union Dime Savings Institution, 118 N. Y. 358; affg. 7 S. R. 453; id. 874 80, 250,415 Ladd, Estate of, 5 Civ. Proc. 50 135 Ladd V. Title Guarantee & Trust Co., 188 N. Y. 616; affg. 113 A. D. 902 543 Ladue, Matter of, 118 N. Y. 213; rvsg. 22 J. & S. (54 Super.) 528. . 36 277, 361 Lafayette Trust Co. v. Beggs, 213 N. Y. 280; affg. 163 A. D. 959. . . 77 249, 291 Lahey v. Kortright, 23 J. & S. (55 Super.) 156; 27 W. D. 394; 13 Civ. Proc. 352; 12 S. R. 71 , 528 1 Table of Cases Cited. Page Lahey v. Kortright, 132 N. Y. 450; approving 24 J. & S. (56 Super.) 527; 4 Supp. 626; rvsg. 17 S. R. 898; 2 Supp. 230 177, 187, 193 Laiglit V. Pell, 1 Edw. 579 74, 421 Lake v. Kessel, 64 A. D. 540 108, 467, 511, 513 Lalor V. looker, 130 A. D. 11 235, 349, 353 Lameraon v. Marvin, 8 Barb. 9 427 Lampman v. Cochran, 19 Barb. 388 525 Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576; rvsg. 72 Hun, 18 36, 266, 267, 268, 357 Landon v. Bauer, 23 W. D. 95; 38 Hun, 644 191 Landon v. Walmuth, 76 Hun, 271 27, 174 Lane v. Sustace, 154 A. D. 636 190 Lang v. Kiendl, 27 Hun, 66; 15 W. D. 92 41, 296, 297 Langdon v. Schiff, 189 N. Y. 548; affg. 120 A. D. 888 87, 106, 152 455, 472 Lathers v. Keogh, 109 N. Y. 583; aflfg. 39 Hun, 576; 16 S. R. 178. . 292 293 Lauder v. Meaerole, 148 A. D. 738 28, 32, 85 Lawrence, In re, 1 Redf. 3}0; 6 Leg. Obs. 274 133 Lawrence v. Brown, 5 N. Y. 394 133 Lawrence v. Taylor, 5 Hill, 108 57 Lazarri & Barton Co. v. Walgrove, appeal book, p. 8 of Walgrove v. Douglass, 166 A. D. 901 65 Leask v. Horton, 39 Misc. 144 414 Leavitt v. Thornton, 123 A. D. 683 417, 482 Ledoux V. Samuels, 116 A. D. V26; 38 Civ. Proc. 48 148, 237 Lee v. Lee, 27 Hun, 1 ; 14 W. D. 257 : . . II, 70, 406 Leerburger v. Watson, 75 Misc. 3; affd. 157 A. D. 915, no opdn.; aflFd. 213 N. Y. 662, no opin 334, 337, 338, 494 Leggett V. Firth, 132 N. Y. 7; affg. 53 Hun, 152; 6 Supp. 158. .179, 200 Leggett v. Hunter, 19 N. Y. 445; affg. 25 Barb. 81 38, 78, 183, 188 195, 221, 261, 262, 263 Leggett v. M'Carty, 3 Edw. 124 , 482 Leggett v. Mutual Life Ins. Co., 64 Barb. 23; rvsd. on other grounds, 53 N. Y. 394 ^ 126, 127, 513, 525 Leggett V. Mutual Life Ins. Co., 53 N. Y. 394; rvsg. 64 Barb. 23 32 45, 525 Leiphardt v. Kalcheim, 39 Misc. 308 320 Lembeek & Betz Eagle Brewing Co. v. Eosenstein, 168 A. D. 563. . . 277 281 Lenehan v. College of St. Francis Xavier, 51 A. D. 535; affg. 30 Misc. 378 82 Lenehan v. College of St. Francis Xavier, 54 A. D. 637 82 Lenihan v. Hamann, 55 N. Y. 652; affg. 14 Abb. Pr. N". S. 274 33 126, 148 Lenihan v. Ward, 119 A. D. 870 340 Leopold V. Heymann, 163 A. D. 16 83 532 Table of Cases Cited. li Page Lese V. Lamprecht, 196 N. Y. 32; rvsg. 123 A. D. 919 485 Lese V. Lawson, 118 A. D. 254 .57, 295, 498, 504 Lese V. Metzinger, 54 Misc. 151 386, 462 Lese V. Miller, 71 A. D. 195; aflfg. 33 Misc. 306 214 Levin v. Hill, 117 A. D. 472; aSd. 193 N. Y. 621, no opin.. . . .318, 475 Levy V. Hill, 50 A. D. 294 274, 334, 494 Levy V. Hill, 70 A. D. 95; affd. 174 N. Y. 536, no opin 334, 335 336, 337 Levy V. Newman, 130 N. Y. 11; affg. 50 Hun, 438; 3 Supp. 324 155 Levy V. Ruflf, 30 Abb. N. C. 291; 3 Misc. 147; affd. 4 Misc. 180. .. . 537 Lewine v. Gefardo, 60 Misc. 261 90, 92, 187, 229, 231, 236, 438, 458 Lewis V. McMillen, 41 Barb. 420; overruling 31 Barb. 395 483, 505 Lighthall v. McGuire, 20 A. D. 248 65, 154 Lighten v. City of Syracuse, 112 A. D. 589; affg. 48 Misc. 134; rvsd. 188 N. Y. 499, on other grounds 12, 47, 280, 420 Lindo V. Murray, 91 Hun, 335; affd. 157 N. Y. 697, memo 176, 444 Lingke v. Sammis, 115 A. D. 882; affd. 189 N. Y. 567, no opin. .242, 404 Linsey v. Ferguson, 3 Lans. 196 427 Listman v. Hickey, 65 Hun, 8 ; 19 Supp. 880 ; affd. 143 N. Y. 630, on opin. below '. 272, 466 Livingston v. Livingston, 56 A. D. 484; affd. 166 N". Y. 601, no opin. 437 Livingston v. Mildrum, 19 N. Y. 440 130, 454 Livingston v. Spero, 18 Misc. 243 541 Lockman v. Reilly, 95 N. Y. 64; 18 W. D. 548, L. v. Eeilley; rvsg. 29 Hun, 434; affg. 10 Abb. N. C. 351 125, 431 Loekridge v. Raab, 68 Misc. 230 517 Lockwood V. Lockwood, 51 Hun, 337; 3 Supp. 887; affg. 2 Supp. 224 168, 392 Loffler V. Brestenstein, 19 W. D. 444 ; 32 Hun, 463 , Loeffler v. Brich- enstein 537 Looff V. Lawton, 97 N. Y. 478; 20 V^. D. 309; modifying 7 W. D. 217 467, 523, 541, 542 Lord V. Crane, 78 Misc. 389 378, 538 Loring v. Binney, 38 Hun, 152; 3 How. N. S. 120; 22 W. D. 498; 8 Civ. Proc. 297; affd. 101 N. Y. 623, no opin 98, 534 Loring v. Chase, 26 Misc. 318 76 Loring v. Hailing, 15 Johns. 119 110 Lounsbury v. Potter, 5 J. & S. (37 Super.) 57 296 Lovejoy v. Tietjen, 47 Hun, 321 ; 14 S. R. 271 401, 404 Lowenfeld v. Ditchett, 114 A. D. 56 101, 160, 162, 344, 351 Lowerre v. Owens, 14 A. D. 215 88, 95 Ludlow V. Van Ness, 8 Bosw. 178 312, 376 Luhrs V. Eimer, 80 N. Y. 171; 9 W. D. 484; affg. 15 Hun, 399; 7 W. D. 334, Lukes v. E 162, 254 Lynch, Matter of, 33 Hun, 309; 67 How. Pr. 436; 20 W. D. 62; rvsg. 2 Dem. 610, Wolfe v. Lynch 134, 476 lii Table of Cases Cited. Page Lynch v .Pfeiflfer, 110 N. Y. 33; 16 S. E. 718; affg. 36 Hun, 603; 23 W. D. 56 161, 265, 267, ,300, 301, 302, 347, 356, 358, 398 Lynch v. Rogers, 150 A. D. 311 398, 456 Lyon V. Lyon, 67 N. Y. 250; 3 W. D. 473 102, 127, 343, 428, 438 439, 468 Maas V. Morgenthaler, 136 A. D. 359 253, 492, 499, 507 Ma.cdonald v. Bach, 51 A. D. 549; affg. 29 Misc. 96, McDonald v. B.; aflfd. 169 N. Y. 615, on opin. below 48, 331, 396 Mackenzie v. Alster, 12 Abb. N. C. 110; 64 How. Pr. 388 131 Mackie v. Mackie, 90 Hun, 610 27 Macomb v. Miller, 9 Paige, 262; aflfd. 26 Wend. 229, Miller v. Macomb . . 224 Magee v.- Palmer, 150 A. D. 356 317, 322 Mahaiwe Bank v. Culver, 30 N. Y. 313 10, 434 Mahoney, Matter of, 34 Hun, 501 9, 133, 137, 139 Mahoney v. Allen, 18 Misc. 134 164, 302, 370, 371, 535, 536 Mandel v. Hess, 107 Supp. 766; 57 Misc. 240 .^ .53, 294, 299 Mandel v. Hopkins, 160 A. D. 872 387, 504 Mandel v. Weschler, 128 A. D. 505; aflfd. 198 N. Y. 518 299 Manhattan Savings Institution v. Norton, 26 Hun, 474; aflfd. 89 N. Y. 607, on opin. below 90, 95, 99, 105, 110, 111, 453, 454, 457 Manheimer v. Gudat, 55 Misc. 330 289 Mann v. Pearson, 2 Johns. 37 411 March v. Marasco, 165 A. D. 348 74, 76, 115, 330, 451, 511 Mardt v. Scharmach, 65 Misc. 124 257 Margraf v. Muir, 57 N. Y. 155 517, 518 Markowitz v. Teichman, 52 Misc. 458 528 Marks v. Halligan, 61 A. D. 179 27, 207, 219 Marsh v. Johnston, 125 A. D. 597; affd. 196 N. Y. 511, no opin. .516, 518 Marsh v. Lowry, 26 Barb. 197 467 MarsK V. Ridgway, 18 Abb. Pr. 262 74 Marsh v. Wyckoflf, 10 Bosw. 202 62, 64, 294 Marshall v. Wenninger, 23 A. D. 275 ; rvsg. 20 Misc. 527 ; aflfd. 163 N. Y. 579, on opin. below 283 Martin v. Colby, 42 Hun, 1 ; 3 S. R, 415 252, 492 Mason v. Scott, 50 A. D. 463 351 Matter of; see names of parties. Matthiessen v. Staflford, 118 N. Y. 666 148 Maupai v. Jackson, 139 A. D. 524; aflfg. 64 Misc. 407. .319, 322, 496, 513 Maurice v. Graham, 8 Paige, 483 170, 309 Mayer v. McCune, 59 How. Pr. 78 ; 2 Monthly L. Bull. 57 48, 173 186, 290, 396, 488, 498 McAdam v. Farrell, 29 Misc. 230 412 McArthur v. Weaver, 129 A. D. 743 257, 397 McBride v. Lewisohn, 17 Hun, 524; 8 W. D. 265 116, 458 MeCabe v. Kenny, 52 Hun, 514; 5 Supp. 678 39, 157, 234 McCahill V. Hamilton, 20 Hun, 388; 9 W. D. 501 30, 146 Table op Cases Cited. liii Page McCarten v. Smith, 163 A. D. 900 A7S, 516 McCarty v. Downes, 161 A. D. 667 171, 430, 460 M'Comb V. Wright, 4 Johns. Ch. 659 528 M'Comb V. Wright, 5 Johns. Ch. 263 364 MoCool V. Jacobus, 7 Robt. 115 57, 286, 488 McCormick v. Tyler, 215 N. Y. 628; affg. 164 A. D. 886 484 McCrea v. Jacobs, 19 Abb. N. C. 188; 9 S. R. 542; 12 Civ. Proc. 321 476 M'Cready v. Metropolitan Life Insurance Co., 83 Hun, 526; aflfd. 148 N. Y. 761, no opin 173, 231 McCtilly V. Heller, 66 How. Pr. 4«8 87, 94, 95, 98 MoDermot v. McDermot, 3 Abb. Pr. N. S. 451 365 M'Dermut v. Lorillard, 1 Edw. Ch. 273 195 McDonald v. Bach; see MacDonald. McDougall V. Dixon, 19 A. D. 420 27, 202, 208 McDougall V. Schneider, 134 A. D. 208 315, 318 McFarlane v. Kerr, 10 Bosw. 249 157, 234, 270, 410 MoGarry v. McMahon, 124 A. D. 607 178, 182, 192 McCowan v. Newman, 4 Abb. N. C. 80; 54 How. Pr. 458; 6 W. D. 97 129 McGown V. Wilkins, 1 Paige, 120 424 McGrane v. Kennedy, 16 Daly, 241 ; 10 Supp. 119 168, 443 Mcllvaine v. Kadel, 3 Robt. 429; 30 How. Pr. 193 205, 210, 246, 248 MoKean v. Hill, 166 A. D. 18 428, 442 McKechnie v. Sterling, 48 Barb. 330 272, 424 McKenna v. Duffy, 64 Hun, 597; 19 Supp. 248; 22 Civ. Proc. 366. . 102 117, 469 McLaughlin v. McCann, 123 A. D. 67 88, 90 McLean v. Ladd, 66 Hun, 341 101, 263 MoLoughlin v. Maher, 17 Hun, 215 216, 221 McMulkin v. Bates, 46 How. Pr. 405 513, 515 McNair v. Newey, 23 W, D. 249 ; 38 HUn, 640 483, 505 McNulty V. Mitchell, 41 Misc. 293 364 McPherson v. Schade, 149 N. Y. 16; affg. 8 Misc. 424 7, 19, 282 386, 495 McPherson v. Smith, 49 Hun, 254; 17 S. R. 19; 2 Supp. 60 17 18, 194, 200, 218, 382, 430, 462 McQuillan v. McQuillan, 134 Supp. ,893; affd. 152 A. D. 910, no opin .' 366, 439 McWhorter v. Agnew, 6 Paige, 111 161, 202, 204, 210, 224 McWhorter v. McMahon, 10 Paige, 386; affg. Clarke, 400 464 McWilliams v. Long, 32 Barb. 194; 19 How. Pr. 547 59 Mead v. Brunnemer, 6 S. R. 38; 42 Hun, 656; 25 W. D. 407 482 Mead v. Martens, 21 A. D. 134; affd. 162 K Y. 626, no opin 32, 324 Mead v. Mead, 5 Supp. 302; 52 Hun, 614; 1 Silv. Supm. 368. .301, 356 Mead v. Mitchell, 17 N. Y. 210; affg. 5 Abb. Pr. 92 34, 121, 221 Meadows v. Michel, 135 A. D. 213 244, 273, 334, 412 Meadows v. Michel, 144 A. D. 927; app. disd. 204 K Y. 585 333 liv Table op Cases Cited. Page Meckes v. Mullen, 75 Misc. 303 539 Meiggs V. Hoagland, 6& A. D. 182; 74 Supp. 234; see 80 A. D. 632; 80 Supp. 1140; 41 Misc. 4; affd. 93 A. D. 617, no opin.; affd. 185 N. Y. 572, no opin 240, 392 Meighan v. Rohe, 166 A. D. 175 94, 234, 240, 460, 546 Meinell v. Meinell, 110 A. D. 891 283, 426, 487 Merchants' Bank v. Thomson, 55 K Y. 7 251, 252, 465, 466, 486, 521 Merges v. Eingler, 34 A. D. 415; affg. 24 Misc. 317; affd. 158 N. Y. 701, on opin. below 328, 329, 330, 360, 475, 490 Merolla v. Lane, 122 A. D. 535 240, 418 Merritt v. Archer, 163 A. D. 648; rvsg. 82 Misc. 515 260 Merritt v. Farmers' Fire Ins. & Loan Ck)., 2 Edw. Ch. 547 263 Merritt v. Lambert, Hoff. 166 • 35, 379 Merritt v. Lambert, 7 Paige, 344 34, 435 Meserole v. Mayor; see Mayor v. Meserole. Meserole v. Williams, 153 A. D. 306 482 Messenger v. Casey, 18 W. D. 71 ; 31 Hun, 45 180 Messenger v. Chambers, 53 Misc. 117 479 Messer v. Aaron, 101 A. D. 169 528 Messinger v. Foster, 115 A. D. 689 237 Methodist Episcopal Church Home v. Thompson, I Silv. C. A. 564; 28 W. D. 264; 108 N. Y. '618, memo.; 13 S. R. 127; affg. 20 J. & S. (52 Super.) 321 2,435 Metzger v. Martin, 87 A. D". 572; 84 Supp. 494; affd. 177 N. Y. 561, no opin 280, 344 Meyer v. Boyd, 51 Hun, 291 410, 419 Miele v. Deperino, 4 Silv. C. A. 611; 135 N. Y. 618, memo 89, 92, 515 Miller v. Ball, 64 N. Y. 286 269, 270, 399 Miller v. Caragher, 35 Hun, 485; 21 W. D. 330 212 Miller v. Macomb, 26 Wend. 229; affg. 9 Paige, 262, Macomb v. Miller 220, 224 Miller v. Weinstein, 52 A. D. 608 ; affd. 166 N. Y. 608, no opin 428 Miller v. Wright, 109 N. Y. 194; 14 S. E. 811; 28 W. D. 440 121 184, 369, 370, 439, 442, 447, 451, 457 Mills, Matter of, 28 A. D. 258; affg. 22 Misc. 629 143, 218 Mills V. Van Voorhies, 20 N. Y. 412; rvsg. 23 Barb. 125; 10 Abb. Pr. 152; M. v. Van Voorhis 30, 128, 250, 492, 493 Miner v. Hilton, 15 A. D. 55. ." 48, 64, 242, 333, 342, 503 Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402; affg. Ill A. D. 578 86, 105, 453 Mitchell V. Bartlett, 51 N. Y. 447; affg. 52 Barb. 319 501 Mitchell V. Smith, 53 N. Y. 413 30i» Mitchell V. Van Allen, 75 A. D. 297 179 Mock V. Leonard, 167 A. D. 921 450 Hoir V. Flood, 66 A. D. 544 52, 82, 115, 165 Moller V. Duryea, 21 W. D. 459; 36 Hun, 643 286, 292, 531 Table of Cases Cited. Iv Page Molt V. Baumann, 65 A. D. 445 52 Monarque v. Monarque, 80 N. Y. 320; 8 Abb. N. C. 102; rvsg. 19 Hun, 332 222, 223, 230, 443, 440 Monroe v. Musica, 166 A. D. 929 136 Moore v. Appleby, 108 N. Y. 237; 13 S. R. 492; 27 W. D. 529; aflfg. 36 Hun, 368 ; 22 W. D. 5 121, 536 Moore v. Morton, 39 A. D. 639 208 Moore v. Williams, 115 N. Y. 586; 23 Abb. N. C. 404; aflfg. 10 S. R. 475; 23 J. & S. (55 Super.) 116; aflfg. 7 S. R. S3 21, 290 Moot V. Business Men's Investment Assn., 157 N. Y. 201; rvsg. 90 Hun, 155 6, 8, 11, 174, 385, 387, 393 Moran v. Conoma, 27 J. & S. (59 Super.) 101; 13 Supp. 625; aflfd. 128 N. Y. 591, no opin 83, 129 Moran v. Stader, 52 Misc. 385 . 416 Morange v. Morris, 34 Barb. 311; affd. 32 How. Pr. 178; 3 Keyes, 48; 3 Abb. Dec. 314 58, 62, 472 More V. Smedburgh, 8 Paige, 600; aflfd. 26 Wend. 238, Smedberg V. More 450 Morgan v. Calvert, 126 A. D. 327 539' Morgan v. Collins, 152 A. D. 158 212 Morgan v. Fullerton, 9 A. D. 233 130, 294 Morris v. Mowatt, 2 Paige, 586 10, 77, 100, 289 Morrison v. Bauer, 26 W. D. 40; 4 S. R. 701; 42 Hun, 660 319 515, 521 Morrison v. Brand, 5 Daly, 40 145, 324, 355, 386, 460 Morton v. Morton, 8 Barb. 18 170, 180, 228 Moscowitz V. Homberger, 19 Misc. 429; aflfd. 20 Misc. 558, Mosko- witz V. Hornberger 118, 140 Moser v. Cochrane, 107 N. Y. 35; 11 S. R. 200; 27 W. D. 113; ap- proving 12 Daly, 292; 18 W. D. 345; aflfg. 13 Daly, 159; 21 W. D. 545 16, 163, 340, 423, 471 Moser v. Ellis, 106 Supp. 1075 332 Moskowitz V. Hornberger, 20 Misc. 558; aflfg. 19 Misc. 429; see 15 Misc. 645 267, 461, 538 Mott V. Ackerman, 92 N. Y. 539; 17 W. D. 242; aflfg. 62 How. Pr. 318, Onderdonk v. A 25, 30, 182, 187, 192, 202, 203, 207, 230 Mott V. Clayton, 9 A. D. 181 30, 34, 283, 284 Mott V. Mott, 68 N. Y. 246; 4 W. D. 137; modifying 8 Hun, 474; 3 W. D. 525 17, 116, 278, 284, 368, 408 Moulton V. Moulton, 47 Hun, 606; 15 S. R. 157; 13 Civ. Proc. 420; 17 S. R. 427 80 Mount Sinai Hospital v. Hyman, 92 A. D. 270 41, 158 Muhlker v. Ruppert, 124 N. Y. 627; 3 Silv. C. A. 337; aflfg. 23 J. & S. (55 Super.) 359; 14 S. R. 734 404 Muller V. Struppman, 6 Abb. N. C. 343; 55 How. Pr. 521, M. v. Struppmann 246, 247, 536 Mullins V. Franz, 162 A. D. 316 75 Ivi Table of Cases Cited. Page Murdoek v. Kelly, 62 A. D. 562 65, 180 Murphy v. Fox, 128 A. D. 534; see 133 A. D. 894; aflfd. 198 N. Y. 509, Smyth v. F., no opin 34, 436 Murphy v. Hurley, No. 1, 155 A. D. 465 507 Murphy v. Shea, 143 N. Y. 78 344 MurpKy v. Smith, 61 A. D. 574 271, 433 Murray v. Harway, 56 N. Y. 337 288, 343 Mutchnick v. Davis, 130 A. D. 417 466, 470, 537 Mutual Life Ins. Co. v. Balch, 4 Abb. N. C. 200 272 Mutual Life Ins. Co. v. Woods, 121 N. Y. 302; aflfg. 51 Hun, 640, memo. ; 21 St. Eep. 341 ; 4 Supp. 133 198 Myers; see also Myres. Myers v. McCuUagh, 63 A. D. 321 187, 193, 222 Mygatt V. Maslen, 141 A. D. 468 25, 206, 227, 231 Mygatt V. Somerville, 23 Supp. 808 112, 480 Myres v. DeMier, 4 Daly, 343; aflfd. 52 N. Y. 647, memo., Myers V. D 3, 475, 485, 486, 506 Nagle V. Taggart, 4 Abb. N. C. 144 84, 85 Nathan v. Hendriclcs, 87 Hun, 483; aflfd. 147 N. Y. 348, Matter of Baer 121, 213 Nathan v. Morris, 62 Hun, 452; 17 Supp. 13 372 Neber v. Hatch, 10 Abb. N. C. 431; aflfd. 88 N. Y. 657, on opin. below ■ 154 Neher v. Bruckner, 36 A. D. 625; 55 Supp. 107; aflfd. 165 N. Y. 617, no opin 274 Nelson v. Russell, 135 N. Y. 137; rvsg. 61 Hun, 528; 16 Supp. 395. . 211 Nesbit V. Knowlton Hall Co., 45 Misc. 510 76, 130, 131 Ne-wins v. Baird, 19 Hun, 306 ; 9 W. D. 273 , Nevins v. B 112 New York Oity Estates Co. v. Central Realty Co., 118 Supp. 1054. . 54 61, 526 New York Life Insurance & Trust Co. v. Bailey, 3 Edw. 416. . . .103, 385 New York Protestant Episcopal Public School, Matter of Trustees of, 31 N. Y. 574 16, 38, 41, 78, 109, 153, 157, 162, 207, 217, 266 New York Security & Trust Co. v. Schoenberg, 87 A. D. 262; affd. 177 N. Y. 556, on opin. below 27, 36, 77, 100, 214, 369 New York Steam Co. v. Stern, 46 Hun, 206; 11 S. R. 496 146, 147 233, 460, 473 Nieklas v. Keller, 9 A. D. 216 282, 340, 360, 420, 466, 469, 535 Noble V. Cromwell, 26 Barb. 475; 6 Abb. Pr. 59; aflfd. 3 Abb. Dec. 382; 27 How. Pr. 289 32, 73, 106, 121, 122, 434, 464, 467 Nodine v. Greenfield, 7 Paige, 544 126, 218, 219 Nolan v. Harned, 13 A. D. 155 242 333 Noonan v. Brennemann, 22 J. & S. (54 Super.) 337 125 Northern Bank of New York v. Drury, 152 A. D. 64 77 291 Northridge v. Moore, 118 N. Y. 421 ; 24 Ahb. N C. 86 513 Northrup v. Gibbs, 28 W. D. 505; 17 S. R. 320; 1 Supp. 465; 49 Sun, 605 468, 485^ 49g Table op Cases Cited. Ivii Page Norton v. Duffy, 15 W. D. 529 ; 28 Hun, 241 215 Norwood V. Barcalow, 6 Daly, 117 ; 1 W. D. 3 540 Oakes v. DeLancey, 71 Hun, 49; affd. 143 N. Y. 673, no opin 410 Oakley v. Briggs, 17 Supp. 751; 63 Hun, 629 15, 237, 282 O'Beirne v. Allegheny & Kinzua Railroad Co., 151 N. Y. 372; affg. 80 Hun, 570, O'B. v. Bullis; sec also 2 A. D. 545; 38 Supp. 4; 158 N. Y. 466 498 Occidental Realty Co. v. Palmer, 117 A. D. 505; affd. 192 N. Y. 588, no opin ' 506, 507 Occidental Realty Co. v. Palmer, 105 Supp. 171 507 O'Connor v. Felix, 147 N. Y. 614; affg. 87 Hun, 179 21 O'Connor v. Huggins, 113 N. Y. 511; affg. 1 Supp. 377; 16 S. R. 130, O'C. V. Higgins 100, 104, 138, 231, 233, 445 Odell V. Claussen, 120 A. D. 535 175 Odell V. Odell, 21 W. D. 90; 34 Hun, 631 292 O'Flynn v. Powers, 136 N. Y. 412; affg. 21 Supp.. 905, ©"Flyn v. P 178 Ogden V. Smith, 2 Paige, 195 189 O'Keeffe v. Westphal, 139 A. D. 79 184, 229 Onderdonk v. Aekerman, 62 How. Pr. 318; 4 Monthly L. Bull. 11; affd. 92 N. Y. 539 , Mott v. A 25, 230 O'Neil V. Van Taasel, 137 N. Y. 297; affg. 17 Supp. 824, O'Neill v. Van Tassell 319, 372, 373 Opinion, 2 City Ct. 396 312, 316 Oppenheim v. McGovern, 115 A. D. 135; affd. 189 N. Y. 572, no opin 304, 305 Oppenheimer v. Humphreys, 9 Supp. 840 ; 56 Hun, 649 ; affd. 125 N. Y. 733, on opin. below 385, 386, 485 Oppenheimer v. Knepper Realty Co., 50 Misc. 186 57, 319 O'Reilly v. King, 2 Robt. 587; 28 How. Pr. 408 9, 118, 141, 142, 503 O'Reilly v. Piatt, 80 A. D. 348 176 Osgood V. Franklin, 2 Johns. Ch. 1; affd. 14 Johns. 527.. 46, 315, 386 Ostrom V. McCann, 21 How. Pr. 431 102, 389, 468 O'Toole V. O'Toole, 39 A. D. 302 Ill, 222 Ottinger v. Strasbourger, 33 Hun, 466; 20 W. D. 79; affd. 102 N. Y. 692, no opin > 231, 232 Outerbridge v. Phelps, 58 How. Pr. 77 273 Ouvrier v. Malion, 117 A. D. 749 301, 302, 361 Overton v. Barclay, 89 Hun, 611; 35 Supp. 326 85 Page V. McDonnell, 55 N. Y. 299; 46 How. Pr. 299; affg. 46 How. Pr. 52 287, 497 Paget V. Melcher, 42 A. D. 76 • 301, 438, 439 Pakas V. Clarke, 136 A. D. 492 343, 345, 451 Palmeer v. Hudson Valley Railway Co., 134 A. D. 42 43, 65, 393 497, 408 Palmer v. Morrison, 104 N. Y. 132; 5 S. R. 585; 25 W. D. 317; affg. 19 J. & S. (51 Super.) 530 27, 67, 147, 149, 427 f Iviii Table of Cases Cited. Page Pangburn v. Miles, 10 Abb. N. C. 42; modified 10 Abb. N. C. 51.. 243 ■299; 301, 302, 410, 464, 474, 534 Paolillo V. Faber, 56 A. D. 241 416 Paret v. Keneally, 30 Hun, 15; 17 W. D. 559, P. v. Kenneally.. 29, 187, 192 Parisen v. Parisen, 1 T. & C. 642; 46 How. Pr. 385. . . ,. .111, 488, 506 Parish v. Parish, 175 N. Y. 181; rvsg. 77 A. D. 181; 78 Supp. 1089 108, 445, 475, 532 Parish v. Parisli, 87 A. D. 430; 84 Supp. 506 501 Parker v. Baker, 28 W. D. 97; 46 Hun, 680; 12 S. R. 598. .146, 250, 259 Parker v. Beer, 173 N. Y. 332; affg. 65 A. D. 598 165, 181 Parker v. Loring, 10 S. R. 354; 45 Hun, 592, 595 162 Parker v. Parmele, 20 Johns. 130 47 Park Hill Co. v. Herriot, 41 A. D. 324 440, 444 Parkinson v. Jaeobson, 18 Hun, 353 164 Parsons v. Rhodes, 22 Hun, 80; 11 W. D. 26 145 Partenf elder v. People, 211 N. Y. 355; affg. 157 A. D. 462. .463, 545, 546 Pell V. Pell, 65 A. D. 388; affg. 35 Misc. 472; affd. 169 N. Y. 607, no opin 241, 408 Pendleton v. Fay, 2 Paige, 202 427 Penfield v. Clark, 62 Barb. 584 42, 45, 292, 395 Penfield v. James, 4 Hun, 69 416, 417 Penfield v. James, 4 Hun, 668 75, 301, 416, 417 People ex rel. Smith v. Sohmer, 163 A. D. 830 160, 477 People esc rel. Taylor v. Brennan, 39 Barb. 522 60, 158, 434, 466 468, 509 People V. Globe Mutual Life Ins. Co., 33 Hun, 393 ; 20 W. D. 14 . . 9 356, 428, 430 People V. Knickerbocker Life Ins. Co., 66 How. Pr. 115 9 70, 77 162, 252 People V. Mutual Brewing Co., 9 A. D. 628 76 People V. N. Y. Building-Loan Banking Co., 189 N. Y. 233; dismiss- ing app. from 114 A. D. 904 72, 77, 511 People V. Open Board of Stock Brokers' Building Co., 92 N. Y. 98 ; 16 W. D. 512; rvsg. 28 Hun, 274 in part; 15 W. D. 527. .73, 430, 461 People V. Open Board of Stock Brokers' Building Co., 49 Hun, 349; 17 S. R. 584; 2 Supp. 113, P. v. Stock Brokers' Bldg. Co.; affd. 112 N. Y. 670, on opin. below 206, 207, 358, 457 People's Trust Co. v. Tonkonogy, 144 A. D. 333 375, 380, 383 Peters v. Delaplaine, 49 N. Y. 362 252, 488, 492, 496 Peters v. McKeon, 4 Den. 546 513 Pfeiffer v. Rheinfrank, 2 A. D. 574 258, 397, 414 Phillips V. Pike, 121 A. D. 753 203, 210, 213 Phillips V. Schieffer, 64 Barb. 548; 7 Lans. 347; 14 Abb. Pr. N. S. 101 151, 346 Phillips V. Wilcox, 12 Misc. 382 126, 371, 474 Table of Cases Cited. lix Page Pierce v. Nichols, 1 Paige, 244 521, 529, 534 Pierce v. Tuttle, 53 Barb. 155 483, 509 Pierce v. Tuttle, 57 N. Y. 636 466, 470 Pinckney v. Smith, 26 Hun, 524 105, 138 Piser V. Lockwood, 30 Hun, 6; 17 W. D. 313 93, 94 Pitt V. Amend, 84 Hun, 492 131 Piza V. Lubelsky, 121 A. D. 734; approved 195 N. Y. 586, no opin.. . 358 388 Pla<:e v. Dudley, 41 A. D. 540 328, 331, 513 Piatt V. Finok, 60 A. D. 312 108, 250, 259, 465 Pl^tt V. Zimmermann, 13 Misc. 519 63 Plant V. Moores, 142 N. Y. 646; affg. 76 Hun, 609; 59 S. R. 870. . 75' 104, 250, 385, 452 Pollock V. Hooley, 67 Hun, 370 195 Pomeroy v. Drury, 14 Barb. 418 47, 249, 509 Pooler V. Sammet, 130 A. D. 650; rvsg. 58 Misc. 469 237, 280, 284 Pope V. Le-s-y, 54 A. D. 495; app. disd. 170 N. Y. 591 399 Pope V. Thrall, 33 Misc. 44 ". 232, 404 Popper V. Peck, 14 W. D. 235; 4 Monthly L. Bull. 50 273, 274 Port Jefferson Realty Co. v. WoodhuU, 128 A. D. 188 112, 361 Porterfield v. Payne, 11 Supp. 31 ; 57 Hun, 591 513 Post V. Bernheimer, 31 Hun, 247; approved 115 N. Y. 664; affg. 16 S. R. 1000; 1 Supp. 805 326 Post V. Hazlett, 12 Supp. 838; 59 Hun, 621 279 Post V. Leet, 8 Paige, 337 297 Post V. Weil, 115 N. Y. 361; affg. 1 Supp. 807; see 8 Hun, 418. .31, 325 Potter V. Boyce, 73 A. D. 383; rvsg. 36 Misc. 467; affd. 176 N. Y. 551, no opin 345, 407 Potter V. Sachs, 45 A. D. 454 376, 428, 430, 432 Poughkeepsie Savings Bank v. Winn, 56 How. Pr. 368 294, 500 Powers V. Bergen, 6 N. Y. 358 39, 255 Powers V. Strauss, 103 A. D. 597 274 Prentice v. Townsend, 143 A. D. 151 429, 430, 513 Prentiss v. Cornell, 31 Hun, 167; 18 W. D. 464; affd. 96 N. Y. 665, no opin 79, 245 Price, Matter of, 67 N. Y. 231; 3 W. D. 558; affg. 6 Hun, 513; Matter of Jackson 481 Price V. Fenn, 3 Dem. 341 138 Price V. Palmer, 23 Hun, 504; 11 W. D. 396 250, 499, 507 Price V. Pestka, 54 A. D. 59 257 Price V. Phillips, 3 Robt. 448 126, 148, 149 Priessenger v. Sharp, 27 J. & S. (59 Super.) 315; 14 Supp. 372..' 2 204, 211, 263, .342, 429, 432 Pryor v. City of Buffalo, 197 N. Y. 123; affg. 134 A. D. 911; affg. 60 Misc. 447 373, 374 Ix Table of Cases Cited. Page ■ Pumpelly v. Phelps, 40 N. Y. 59 ; affg. 43 Barb. 469 , Brinckerhoff v. P. ; approving 24 Barb.' 100 516 Putnam v. Westcott, 19 Johns. 73 150 Putzel V. Van Brunt, 8 J. & S. (40 Super.) 501 406 Putzel V. Wilson, 49 Hun, 220 ; 16 S. R. 920 ; 2 Supp. 47 538 Quin V. Skinner, 49 Barb. 128; rvsd. 43 N. Y. 99 30, 175, 176, 182 Raben v. Risnikoff, 95 A. D. 68 61, 299, 420, 421, 422 Ramsay v. DeRemer, 65 Hun, 212 207, 216, 219, 221 Randell v. Von Ellert, 12 Hun, 577; 54 How. Pr. 363; 5 W. D. 476, Randel v. Von E.; rvsg. 54 How. Pr. 364; 5 W. D. 253, Randal v. von E 397 'Ranger v. Leo, 117 Supp. 927 537 Ranger v. Yates, 207 N. Y. 698 301, 304, 393 Ranhofer v. A. C. &, H. M. Hall Realty Co., 143 A. D. 237 . . 176, 213, 218 Rankin v. Clement, 194 N. Y. 535; aflfg. 123 A. D. 916 244, 333 Ray V. Adams, 44 A. D. 173; affg. 28 Misc. 664 316, 501, 502 Raynor v. Lyon, 46 Hun, 227; 11 S. R. 500; 27 W. D. 278 322 Raynor v. Selmes, 52 N. Y. 579; rvsg. 7 Lans. 440 501, 502 Reading v. Gray, 5 J. & S. (37 Super.) 79 42 Recht v, Hersehman-Blier-Edelstein Co., 139 A. D. 300 181 Recor v. Blackburn, 71 Hun, 54 19, 114, 254 Reed v. Reed, 107 N. Y. 545; 12 S. R. 481; 28 W. D. 26; affg. 46 Hun, 212; 11 S. R. 524; 27 W. D. 244; 13 Civ. Proc. 109 120 Reeder v. Schneider, 3 T. & C. 104; 1 Hun, 121, memo; 47 How. Pr. 379, Reede v. S 53 Reformed Protestant Dutch Church in Garden St. v. Madison Ave- nue Building Co., 214 N. Y. 268; affg. 163 A. D. 359, South Church V. M. A. B. Co 34, 319 Reformed Protestant Dutch Church in Garden St. v. Mott, 7 Paige 77 160, 208, 211, 267, 355, 529 Regan v. Traube, 16 Daly, 152 ; 18 Civ. Proc. 332 95, 357 . Reid V. Johnson, 121 Supp. 750. . 90, 127, 507 Reilly v. Hart, 130 K Y. 626; affg. 55 Hun, 465; 8 Supp. 717 97 Reiners v. Niederstein, 55 A. D. 80 456 Remsen v. Reese, 72 Hun, 370 424, 487 Remsen v. Wingert, 112 A. D. 234; affd. 188 N. Y. 632, no opin 27 275, 276 Reydel v. Reydel, 10 Mlac. 273 424 Reynolds v. Cleary, 61 Hun, 590; 16 Supp. 421 19, 90, 92, 96, 238 317, 318, 323 Reynolds v. Kaplan, 3 A. D. 420 I27 541 Reynolds v. Strong, 82 Hun, 202 6, 8, 9, 18, 171, 257, 371^ 479 Reynolds v. White, 134 A. D. 248 236 339 472 Reynolds v. White, 143 A. D. 595 ' '239 Reynolds v. Wynne, 121 A. D. 272 3Q8 332 Reynolds v. Wynne, 127 A. D. 69 ' 529 Table of Cases Cited. Ixi Page Rhoades v. Freeman, 9 A. D. 20 483, 509- Rhodes v. Caswell, 41 A. D. 229 221, 222, 223, 443, 458 Rice V. Barrett, 99 N. Y. 403; 2 S. R. 4; 22 W. D. 91; rvsg. 35 Hun, 366 71,487 Rice V. Barrett, 102 N. Y. 161 ; 23 W. D. 460 226 Richards v. Washburn, 14 A. D. 237; see 28 A. D. 109; aflfd. 163 N. Y. 585, no opin 304 Richardson v. Sharpe, 29 Barb. 222 199 Richter v. Distelhurst, 116 A. D. 269 325 Richter v. Kratenstein, 163 A. D. 868 115, 162 Ridley v. Walter, 153 A. D. 65; see 153 A. D. 695 240, 434, 501 Riggs V. Boucicault, 20 W. D. 184; 33 Hun, 667 502 Riggs V. Pursell, 66 N. Y. 193; 3 W. D. 1 32, 33, 286, 288, 317 321, 372, 377 Riggs V. Pursell, 74 N. Y. 370; 7 W. D. 281 33, 442, 502, 522 530, 531 Rigney v. Coles, 6 Boaw. 479 11, 100, 104, 110, 111, 137, 138, 357 Rinaldo v. Houamann, 1 Abb. N. C. 312; 52 How. Pr. 190 62, 300 Ring V. Palmer, 83 A. D. 67 279 Ritchie v. Bennett, 35 A. D. 68 64, 164 Ritten v. Griffith, 16 Hun, 454 87 Roarty v. McDermott, 89 Hun, 511 ' -536 Roarty v. McDermott, 146 N. Y. 296; rvsg. 84 Hun, 527. . .201, 306, 438 Eobb V. Montgomery, 20 Johns. 15 50, 396 Robbins v. Austin, 42 Hun, 469; 6 S. R. 30; 25 W. D. 311 418 Roberta v. Gary, 84 Hun, 328 185, 199, 204, 209, 210, 218 Roberts v. Geis, 2 Daly, 535 287 Rockwell V. Decker, 33 Hun, 343; affg. 5. Civ. Proc. 62 113, 116 123, 222, 534 Rogers v. James, 25 Hun, 453; see 24 Hun 342; 11 W. D. 574. .368, 502 Rogers v. McLean, 34 N. Y. 536; 31 How. Pr. 279; affg. U Abb. Pr. 440; rvsg. 10 Abb. Pr. 306; 31 Barb. 304 70, 79, 80, 245 247, 357, 391, 449, 452, 455 Romaine v. McMillan, 5 How. Pr. 318 113, 119 Roman Catholic Church of the Transfiguration v. Niles, 86 Hun, 221 293 Roome v. Philips, 27 N. Y. 357; see 24 N. Y. 463 31, 65, 192, 262 475, 530 Roome v. Phillips, 24 N. Y. 463; see 27 N. Y. 357 217, 225 Roos v. Lockwood, 59 Hun, 181; 13 Supp. 128; affd. 129 N. Y. 623, R. V. Tremper, no opin ' 252, 492 Root V. Stuyvesant, 18 Wend. 257 68, 168, 200, 226, 230 Rose v. Adler, 165 A. D. 921 390 Rosenberg v. Feiering, 121 A. D. 190; see 124 A. D. 522. . .305, 466, 471 Rosenberg v. Freeman, 5 Supp. 891; 53 Hun, 629; 2 Silv. Supm. 189 298 Rosenberg v. Haggerty, 189 N. Y. 481; rvsg. 114 A. D. 920 435, 479 Ixii Table of Cases Cited. Page •Rosenberg v. Haggerty, 141 A. D. 73 516 Rosenberg v. Jacobson, 56 Misc. 693 54, 55, 305, 471 Rosenberg v. Levitt, 56 Misc. 695 305 Rosenblnm v. Eisenberg, 123 A. D. 896 154, 155', 339, 340, 363 Rosenfeld v. Miller, 131 A. D. 282 118, 140 Rotlibard v. Abels Gold Realty Co., 128 A. D. 887 .' 337 Roussel V. Lux, 39 Misc. 508 320, 380 Roy V. Willink, 4 Sand. Ch. 525 43 Royee v. Adams, 123 N. Y. 402; affg. 57 Hun, 415; 10 Supp. 821 187, 193 Ruess V. Ewen, 34 A. D. 484; aifd. 165 N. Y. 633, on opin. below. . . 233 Ruff V. Gerhardt, 73 A. D. 245 236, 341 Rube V. Law, 8 Hun, 251; 3 W. D. 157 369, 402, 404, 467, 474, 520 Runyon v. Grubb, 119 A. D. 17; affd. 192 N. Y. 586, no opin 212 Russell V. Wales, 119 A. D. 536; rvsg. 100 Supp. 785. .249, 289, 362, 389 Ryder v. Coburn, 47 A. D. 182 479 Ryder v. Wall, 29 Misc. 377 518 Ryder v. Wood, 8 Supp. 421 ; 55 Hun, 607 140, 141 Ryerson v. Willis, 81 N". Y. 277; 10 W. D. 283; affg. 8 Daly, 462. . . 450 Sabriski v. Veloski, 25 Abb. N. C. 185; 11 Supp. 668, Saberski v. Velosky 420, 495, 522 Sage V. Ranney, 2 Wend. 532 48, '54, 55 Salisbury v. Ryon, 105 A. D. 445 27, 179 Salmon v. Stuyvesant, 16 Wend. 321 68, 200 203, 207, 209 Salomon v. Lawrence, 20 J. & S. (52 Super.) 154; 22 W. D. 213, Soloman v. L 205 Samuelson v. Gliekman, 113 A. D. 654 336 Sandford v. White, 56 N. Y. 359; 47 How. Pr. 96; affg. 1 T. & C. 647, Sanford v. W.; 46 How. Pr. 205 82 Sasserath v. Metzger, 30 Abb. N. C. 407; 27 Supp. 959, S. v. Metz- gar 330, 359 Sauter v. Frank, 67 Misc. 657 330 Schaefer v. Blumenthal, 169 N. Y. 221; rvsg. 51 A. D. 517 271, 273 275, 373 Schaefer v. Hilliker, 140 A. D. 173 ; affd. 206 N. Y. 708, no opin 280 283, 284 Scharrath v. Dermody, 117 Supp. 968. 268 Scheibeler v. Albee, 114 A. D. 146 484 Schell V. Cohen, 55 Hun, 207; 7 Supp. 858 80, 109 Schermerhorn v. Mblo, 2 Bosw. 161 16, 164 Scheu V. Lehning, 31 Hun, 183; 66 How. Pr. 231; 18 W. D. 261; 4 Civ. Proc. 385. , 119 Schiff V. Taylor, 104 A. D. 42 304, 305 Schiffer v. Pruden, 64 N. Y. 47; 2 W. D. 11; affg. 7 J. & S. (39 Super.) 167 253 Schlesinger v. Klinger, 112 A. D. 853 36, 253 Sehlesinger v. Weber, 195 N. Y. 599; affg. 126 A D. 947 401, 494 Table of Cases Cited. Ixiii Page Sehmalholz v. Polhaus, 49 How. Pr. 59 99, 105, 128, 437 Schmidt v. Livingston, 3 Edw. 213 400 Schmidt v. Reed, 132 N. Y. 108; affg. 26 J. & S. (58 Super.) 570; 9 Supp. 705, Schmitt v. E 303, 485, 496, 504 Schmohl V. Chasis, 83 A. D. 643 412 Sohnitzer v. Bernstein, 119 A. D. 47 378 Schoenewald v. Eosenstein, 5 Supp. 766 401 Scholle V. Scholle, 23 J. & S. (55 Super.) 468 362, 392 Scholle V. Scholle, 101 N. Y. 167; 23 W. D. 13 429 Scholle V. Scholle, 113 N. Y. 261; 23 St. Eep. 271; aflfg. 23 J. & S. j;55 Super.) 474; 24 J. & S. (56 Super.) 399; 4 Supp. 809.. 25, 183 186, 198, 256, 434 Schorr v. Gewlrz, 39 Misc. 186 , 517 Schreiber v. Elkin, 118 A. D. 244 308, 479, 517 Schreyer v. Arendt, 83 A. D. 335 27, 210, 532 Schriver; see Shriver. Sehroeppel v. Hopper, 40 Barb. 425 66, 488, 496, 505 Schueler v. Dooley, 149 A. D. 814 450 Schult V. Moll, 132 N. Y. 122; affg. 10 Supp. 703 360 Schultz V. Eose, 65 How. Pr. 75; 5 Monthly L. Bull. 38, memo... 7 14, 18, 232, 305, 348 Schumacher v. Reichardt, 2 City Ct. 341 318 Schumaker v. Grossman, 2 Monthly L. Bull. 94 ; affd. 12 W. D. 99 ; 24 Hun, 385, S. v. CroSeman 94, 454 Schwartz v. Eehfuss, 129 A. D. 630; affd. 198 N. Y. 585, no opin.. . 218 Schween v. Greenberg, 76 Hun, 354 169 Schwoerer v. Leo, 39 Misc. 505; affd. 83 A. D. 643, on opin. below. 313 320, 322 Scofield V. Powers, 215 N. Y. 683 299, 308, 498 Scott , V. Neuberger, 58 Misc. 22 337 Scott V. Thorp, 4 Edw. 1 48, 534 Scripture v. Morris, 38 A. D. 377; affd. 159 N. Y. 534, no opin... 282 Scudder v. Watt, 98 A. D. 228 33, 315, 316, 317, 323 Seaman v. Hicks, 8 Paige, 655 16, 17, 18, 70, 281 Sears v. Hyer, 1 Paige, 483 73, 106, 120, 247, 300 Sebring v. Mersereau, 9 Cow. 344; affg. 1 Hop. 501 69, 122, 290 Seidelbaeh v. Knaggs, 44 A. D. 169; affg. 27 Misc. 110; affd. 167 N. Y. 585, no opin 207, 358, 398 Seidenburg v. Pesce, 140 A. D. 232 90, 92 Seidman v. Gieb, 19 Civ. Proc. 359 482 Seller v. Wilson, 43 Hun, 629; 7 S. R. 254; 26 W. D. 297; 12 Civ. Proc. 267 92 Seitz V. Groves, 99 A. D. 629 159, 341, 387 Seitz v. Messerschnltt, 117 A. D. 401; 102 Supp. 732; affd. 188 N. Y. 587, no opin 129, 359 Ixiv Table of Cases Cited. Page Seligman v. Sonneborn, 1 How. Pr. N. S. 465; affd. 27 W. D. 326; 11 S. R. 305 363 Selkir v. Klein, 50 Misc. 194 268 Selover v. Chaffee, 20 W. D. 115; 33 Hun, 668 269, 448 Sewell V. Underbill, 197 N. Y. 168; affg. 127 A. D. 92 272 Seymour v. Delancey, 1 Hop. 436; affd. 5 Cow. 714 19, 241, 353, 528 Seymour v. Delancy, 3 Cow. 445 ; rvsg. 6 Johns. Ch. 223 528 Sheindelman v. Colyer, 122 A. D. 379 411 Shepman Mortgage & Realty Corporation v. Sussman, 147 A. D. 25 50, 300 Shiffer; see Schiffer. Shire v. Plimpton, 50 A. D. 117 231, 482 Shriver v. Shriver, 86 N. Y. 575 ; 13 W. D. 436 , Sehriver v. Sehriver ; affg. 24 Hun, 658; 12 Wkly. Dig. 328., 8, 9, 18, 20, 71, 79, 116, 146 235, 241, 343, 353, 356, 536 Siebel v. Cohen, 22 J. & S. (54 Super.) 436; 7 S. R. 54 420 Siegel V. Ajiger, 13 Abb. N. C. 362 146, 150, 196, 377, 458 Silleek v. Heydrick, 2 Abb. Pr. N. S. 57 95, 109 Simis V. McElroy, 15 Supp. 19; 60 Hun, 583 224, 239 Simis V. McElroy, 160 N. Y. 156; affg. 12 A. D. 434 232, 529 Simon v. Kaliake, 1 Sweeny, 304; 37 How. Pr. 249; 6 Abb. Pr. N. S. 224 377 Simon v. Vanderveer, 155 N. Y. 377; rvsg. 84 Hun, 452 436, 437 Sinnott v. Ennia, 120 A. D. 874 89 Sisco V. Martin, 61 A. D. 502 340, 356, 392 Slater, Matter of, 17 Mise. 474; Gibbons, 8 136, 137, 138 Sloane v. Martin, 145 N. Y. 524; affg. 77 Hun, 249; affg. 24 Supp. 661 34, 81 Smadbeck v. Law, 106 A. D. 552 525 Smith, People ex rel., v. Sohmer, 163 A. D. 830 160, 477 Smith V. Coffin, 34 Hun, 635 186, 397, 416 Smith V. Doe, 111 Supp. 525 99, 101, 160 Smith V. Harrigan, 27 Abb. N. C. 322; 15 Supp. 854 431 Smith V. Hull, 97 A. D. 228; affd. 184 N. Y. 534, no opin 221 Smith V. Jacobs, 34 Hun, 628 146 Smith V. Joyce, 14 Daly, 73; 3 S. R. 560; 25 W. D. 106; 11 Civ. Proc. 257 117 Smith V. McCluskey, 45 Barb. 610 51, 54, 272, 503, 504 Smith V. Mooney, 14 W. D. 237 537 Smith V. Mulligan, 11 Abb. Pr. N. S. 438 162, 254 Smith V. Peyrot, 201 N. Y. 210; rvsg. 134 A. D. 954; rvsg. 116 Supp. 543 201, 538 Smith v. Riggs, 2 Duer, 622 45, 250, 477, 513, 535 Smith V. Rogers, 42 Hun, 110; 3 S. R. 380; 25 W. D. 116; affd. 118 N. Y. 675, no opin 55 Smith V. Secor, 157 N. Y. 402; affg. 31 A. D. 103 222, 223 Table of Cases Cited. Ixv , Page Smith V. Smeltzer, 1 Hilt. 287; 4 Abb. Pr. 469 59, 390 Smith V. Warringer, 41 Misc. 94. ... , 118 Smith V. Wells, 69 N. Y. 600; 4 W. D. 524 33, 96 Smithers v. Steiner, 13 Misc. 517 331,332 Smyth V. Fox, 198 N. Y. 509; affg. 133 A. D. 894; see Murphy V. F 34 Smyth V. MoCool, 22 Hun, 595; 11 W. D. 84 404, 412 Smyth V. Eowe, 4 Monthly L. Bull. 60 97, 98 Smyth V. Rowe, 33 Hun, 422 ; 20 W. D. 98 ; affd. 98 N. Y. 665, on opin. below; 21 W. D. 368 124, 447, 456 Smyth V. Sturges, 108 N. Y. 495; 28 W. D. 112; 13 S. R. 801; afifg. 30 Hun, 89; 13 Abb. N. C. 75; 18 W. D. 43; 65 How. Pr. 360, Smith v. Sturgess 271, 490 Snow V. Monk, 81 A. D. 206 332, 478, 479, 526 Snyder v. Parezo, 151 A. D. 110; affd. 206 N. Y. 689, no opin.. .83, 360 Sohns V. Beavis, 200 N. Y. 268; affg. 133 A. D. 717 68, 322 Sokolski V. Bleistift, 129 Supp. 26 537 Soloman; see Salomon. Sonn V. Kennedy, 51 Misc. 234 79, 121, 162, 182 South Church v. Madison Av. Bldg. Co. ; see Reformed P. D. Churcli V. M. A. B. Co. Spaulding v. Fierle, 86 Hun, 17 ; affd. 155 N. Y. 676, on opin. be- low 56, 485 Spans V. Schaffner, 2 Supp. 189 87, 88 Spencer v. Merchant, 100 N. Y. 585; 22 W. D. 434; affd. 125 U. S. 345 41, 296 Spero V. Shultz, 14 A. D. 423; affd. 160 N. Y. 660, no opin., S. v. Sohultz 235 Sprickerhoff v. Gordon, 120 A. D. 748; affd. 194 N. Y. 577, no opin.. 132 Spring V. Sandford, 7 Paige, 550 70, 102, 113, 122, 163, 248 385, 473, 530 Sproule V. Davies, 171 N. Y. 277; affg. 69 A. D. 502 39, 75 Squires v. Peck, 14 W. D. 564; 27 Hun, 225, Squire v. P 483 Stanley v. Freckelton, 65 Hun, 138; 19 Supp. 913 ' 131 Stanton v. Eastman, 63 Misc. 385 90 State Bank v. Wilchinsky, 197 N. Y. 578; affg. 134 A. D. 948 471 Steckler y. Godillot, 17 Misc. 286 44, 333, 343, 474 Steele v. Rumore, 117 Supp. 189 .,..'. 538 Steers v. Laird, 3 Misc. 408 521 Stehlin v. Golding, 15 S. R. 814 250, 452 Steinhardt v. Baker, 163 N. Y. 410; affg. 25 A. D. 197; affg. 25 A. D. 198, note; 20 Misc. 470 85, 362 Steinhardt v. Cunningham, 130 N. Y. 292; affg. 55 Hun, 375; 8 Supp. 627 101 Steinle v. Bell, 12 Abb. Pr. N. S. 171 92, 97, 533 Stephan v. Butcher, 107 A. D. 617 94, 101 Ixvi Table of Cases Cited. Page Stephens v. Flammer, 40 Misc. 278; affd. 122 A. D. 918, no opin.; affd. 191 N. Y. 524, no opin.. . ^ 19 Stephens v. Humphryes, 73 Hun, 199; affd. 141 N. Y. 586, on opin. below 117, 368, 374 Ste~rnberger v. McGovern, 56 N. Y. 12; 15 Abb. Pr. N. S. 257; rvsg. 4 Daly, 456 252, 492, 495, 498, 508, 522 Stevens v. Banta, 47 Hun, 329; 13 S. R. 455; 28 W. D. 142. . . .427, 429 430 Stevens v. Hunt, 15 Barb. 17 248, 250, 251, 415 Stevenson v. Fox, 40 A. D. 354; affd. 167 N. Y. 599, no opin 241 328, 332 Stevenson v. Spratt, 3 J. & S. (35 Super.) 496 498, 507 Stewart v. Gillett, 79 Misc. 93 492, 514 Stewart v. Hamilton, 37 Hun, 19 173, 179 Stoker v. Schwab, 24 J. & S. (56 Super.) 122; 28 W. D. 510; 16 S. R. 885; 1 Supp. 425 265, 458, 459 Stokes V. Hyde, 14 A. D. 530; followed 48 Supp. 717; see 24 A. D. 624 194, 197, 256, 382 Stokes v. Johnson, 57 N. Y. 673 14, 328, 372, 421 Stone V. Lord, 80 N. Y. 60; 9 W. D. 536 52, 418 Stone V. Thaden, 16 Daly, 280; 10 Supp. 236 42, 271, 362 Story V. Conger, 36 N. Y. 673 ,. 47, 292, 295 Strasbourger v. Falkenberg, 38 A. D. 627; 56 Supp. 1117 311 Strauss v. Bendheim, 162 N. Y. 469; affg. 28 Misc. 660, S. v. Benheim; rvsg. 44 A. D. 82 ." 429, 441, 502 Street v. Gordon, 41 A. D. 439 185, 205 Strout v. Kenny, 107 Supp. 92 537 Strube v. Leutzbach, 12 Misc. 216 178 Struppman v. Muller, 52 How. Pr. 211 119, 123 Stuyvesant v. Weil, 167 N. Y. 421; 32 Civ. Proc. 127; affg. 26 Misc. 445; rvsg. 41 A. D. 551; 29 Civ. Proc. 319 105, 479 Styles V. Blume, 12 Misc. 421 ; rvsg. 30 Supp. 409 294, 436, 496, 497 Sugarman v. Goldberg, 100 Supp. 1012 286 Summers v. Burtis, 4 Edw. 728 168 Sunswick Land Co. v. Murdoek, 129 A. D. 579; affd. 199 N. Y. 517, no opin 90 Suydam v. Dunton, 84 Hun, 506 33, 52,281 Swan V. Packer, 161 A. D. 511 212 Sweet V. Schliemann, 95 A. D. 266 184, 194, 264 Syracuse Savings Bank v. Burton, 6 Civ. Proc. 216 86, 93 Taber v. Willetts, 1 A. D. 285; affd. 153 N. Y. 663, on opin. ' below 184, 185 Taggart v. Murray, 53 N. Y. 233 219, 220 Tallmadge v. Wallis, 25 Wend. 107 483 Tamsen v. Sehaefer, 108 N. Y. 604; 14 S. R. ll'; 28 W. D. 372 503 Tanzer v. Bankers' Land and Mortgage Corporation, 159 A. D. 351. 48 51, 54, 504 Table of Cases Cited. Ixvii Page Tate V. Jordan, 3 Abb. Pr. 392 103 Taub V. Speetor, 124 A. D. 158 232, 243, 244 Tax Lien Co. v. Schultze, 213 N. Y. 9; rvsg. 161 A. D. 693. . . . ...128, 131 Taylor, People ex rel, v. Brennan, 39 Barb. 522 60, 158, 434, 466 468, 509 Taylor v. Bell, 121 A. D. 437 150 Taylor v. Chamberlain, 6 A. D. 38 42, 100, 133, 134, 353 Taylor v. Klein, 47 A. D. 343; affd. 170 N. Y. 571, no opin 29 428, 430, 459 Teller v. Schulz, 123 A. D. 883 51, 424 Temple v. Sammis, 97 N. Y. 526; 20 W. D. 311; affg. 16 J. & S. (48 Super.) 324 225 Ten Broeck v. Livingston, 1 Johns. Oh. 357 322, 369 Terry v. Westing, 5 Supp. 99; 52 Hun, 610 317 Thall V. Dreyfus, 84 A. D. 569 16, 218 Thistle V. Thistle, 5 Civ. Proc. 43; 66 How. Pr. 472 80, 123 Thompson v. Lyons, 22 J. & S. (54 Super.) 101 503 Thompson v. Schmeider, 38 Hun, 504; 23 W. D. 33; app. disd. 102 N. Y. 504 493, 501, 512 Thorn, Matter of, 164 A. D. 151 542 Thorn v. Mayer, 12 Misc. 487 35, 346, 347, 359, 384, 390 Thorn v. Sheil, 15 Abb. Pr. N. S. 81 87, 387, 394, 452 Thornton Brothers' Co. v. TuUy Construction Co., 160 A. D. 171 318, 470 Thwing V. Thwing, 9 Abb. Pr. 323; 18 How. Pr. 458 118 Thyson v. Thyson, 114 A. D. 911; aflfd. 188 N. Y. 544, no opin 235 Tietjen v. Palmer, 121 A. D. 233; 105 Supp. 790 407 Tilton y. Alcott, 16 Barb. 598 496 Timby v. Kinsey, 18 Hun, 255 516 Timmermann v. Cohn, 204 N". Y. 614; rvsg. 146 A. D. 924; rvsg. 70 Misc. 327 21, 27, 234, 274, 387 Title Guarantee & Trust Co. v. Fallon, 101 A. D. 187 258, 312 339, 397 Title Guarantee & Trust Co. v. Wesoliok, 115 A. T>. 608 307, 540 Tobin V. Carey, 34 Hun, 431 109, 453 Toch V. Horowitz, 87 Supp. 455 288, 524 Todd V. Eighmie, 4 A. D. 9 380, 383, 414 Todd V. Eighmie, 10 A. D. 142 375, 381 Todd V. Union Dime Savings Institution, 118 N. Y. 337; rvsg. 7 S. E. 449; 20 Abb. N. C. 270 57, 346, 349, 414, 415 Todd V. Union Dime Savings Institution, 128 N. Y. 636; 3 Silv. C. A. 539; aflfg. 14 Supp. 937 6, 346, 349, 415 Tolosi v. Lese, 120 A. D. 53 ^. . . 444 Tompkins v. Hyatt, 28 N. Y. 347; rvsg. 29 Barb. 212 64,^65, 471 483, 498, 505 Tompkins v. Seely, 29 Barb. 212; rvad. 28 N. Y. 347, T. v. Hyatt. . 60 488, 505 Ixviii Table of Cases Cited. - Page Tonge V. Newell, 16 A. D. 500 51, 55 Toole V. Koenler, 14 S. K. 934 123, 344, 530 Toole V. McKiernan, 16 J. & S. (48 Super.) 163; 14 W. D. 220 356 382, 427, 430 Toole V. Toole, 112 N. Y. 333; 22 Abb. N. C. 392; rvsg. 4 Hun, 634; also 49 Hun, 607 254, 500 Totten V. Stuyvesant, 3 Edw. 500 68, 97, 103, 110, 127, 249, 289 290, 380, 393, 458 Towle V. Jones, 1 Robt. 87; 19 Abb. Pr. 449 52, 53, 289, 294, 472 Townsend, Matter of, 203 N. Y. 522; affg. 144 A. D. 912 136, 137 Townsend v. Pendleton, 120 A. D. 890 505 Traver v. Halstead, 23 Wend. 66 47 Trenton Potteries Co. v. Title Guarantee & Trust Co., 176 N. Y. 65 ; affg. 68 A. D. 636 543 Trustees of Jones Fund v. Roth, 18 W. D. 459 128, 418 Tubbs V. Ecmbree, 89 Hun, 475 529 Tucker v. Woods, 12 Johns. 190 62, 286 Turco V. Trimboli, 152 A. D. 431 186 Turner v. Walker, 40 Misc. 379 : . 152, 273, 276, 314 Tyler v. Seller, 76 Misc. 185 463, 537 Uebelacker v. Uebelacker, 112 Supp. 527 338, 421, 422, 489 XJhl V. Loughran, 4 Supp. 827; 52 Hun, 611; 16 Civ. Prcc. 386; affg. 14 Civ. Proc. 344; 2 Supp. 190; 17 S. R. 763, U. v. Longhran 81 Ungrich v. Schaff, 119 A. D. 843 329, 338 Union Dime Savings Institution v. Anderson, 83 N. Y. 174; 11 W. D. 232, U. D. S. I. v. Andariese; affg. 19 Hun, 310; 9 W. D. 434. 114 Union Trust Co. v. Driggs, 62 A. D. 213 32, 89, 96, 129, 424 Urbach v. Pye, 124 A. D. 587 ; rvsg. 55 Misc. 465 422, 470 Urbauer v. Cranstoun, 60 A. D. 51 174 Valentine, Matter of, 72 N. Y. 184; 3 Abb. N. C. 285; 6 W. D. 17; rvsg. 10 Hun, 83 145, 449, 480 Valentine v. Belden, 20 Hun, 537 431 Van Allen v. Humphrey, 15 Barb. 555 50 Van Benthuysen v. Crapser, 8 Johns. 257 57 Van Derminden v. Essig, 2 City Ct. 381 316, 524 Van Eps v. Schenectady, 12 Johns. 436 42, 43, 67, 395 Van Horn v. Stuyvesant, 50 Misc. 432 328, 329, 337 Van Rensselaer v. Bull, 17 Supp. 117; affd. 133 N. Y. 625, on opin. below 46, 270, 370 Van Rensselaer v. Miller, Lalor's Supp. 237 50 Van Schaick v. Lese, 31 Misc. 610 258, 316, 317, 324, 326, 397 Van Williams v. Elias, 106 A. D. 288 99, 100, 363 Van Winkle v. Fowler, 52 Hun, 355; 5 Supp. 317; 52 Hun, 614 180 Van Wyck v. Hardy, 39 How. Pr. 392; 4 Abb. Dec. 496; affg. 11 Abb. Pr. 473; 20 How. Pr. 222 90, 91, 92, 96, 98, 99, 449, 451, 452 Van Wyck v. Richman, 33 Misc. 404 204, 400 Van Zandt v. Furlong, 44 St. Rep. 384; 18 Supp. 54; 63 Hun, 630. 258 Varian v. Stevens, 2 Duer, 635 105, 107 Table of Cases Cited. Ixix Page Vedder v. Evertson, 3 Paige, 281 217, 220, 368, 490 Veeder v. Fonda, 3 Paige, 94 74, 419 Veit V. Dill, 78 Hun, 171 257, 396 Veit V. Sohwob, 127 A. D. 171 347, 394, 415 Verdin v. Slocum, 71 N. Y. 345; 5 W. D. 435; rvag. 9 Hun, 150; 4 W. D. 47 127, 207 Viele V. Keeler, 129 N. Y. 190; rvsg. 13 Supp. 196; 59 Hun, 617. 168, 210 Viele V. Troy & Boston R. R. Co., 21 Barb. 381; affd. 20 N. Y. 184. . 59 Volz V. Steiner, 67 A. D. 504 89, 95, 328, 347 Von Glahn v. Heins, 128 A. D. 167 143 Von Hatten v. Scholl, 1 A. D. 32; 25 Civ. Proc. 247 73, 106 Voorhees v. DeMeyer, 2 Barb. 37; afifg. 3 Sand. Ch. 614 19, 484 489, 493, 497 Voorhies v. Voorbiea, 66 Misc. 78 204, 263, 346, 546 Vought V. Williams, 120 N. Y. 253; affg. 46 Hun, 638; 27 W. D. 568; 12 S. R. 733 6, 7, 9, 11, 12, 18, 3B6 Wacht V. Cohen, N. Y. L. J. Jan. 4, 1905 421 Wacht V. Hart, 120 A. D. 189; affd. 198 N. Y. 629, no opin 303 Wadick v. Mace, 118 A. D. 777; rvsd. 191 N. Y. 1 400, 496, 531 Wagner v. Hodge, 34 Hun, 524; 21 W. D. 125; affd. 98 N. Y. 654, no opin 101, 126, 148, 377, 402 Wagner v. Perry, 47 Hun, 516 ; 15 S. R. 8 279 Wait V. Cerqua, 7 Supp. 110; 52 Hun, 614; affd. 117 N. Y. 654, no opin 165, 176 Waite V. Simons, 121 N. Y. 712 95, 108, 451, 455 Wake V. Hart, 12 How. Pr. 444 Ill Waldron v. Schlang, 47 Hun, 252; 13 S. R. 401; 28 W..D. 27; affd. 113 N. Y. 665, no opin 182 Walgrove v. Douglass, 166 A. D. 901 27, 532 Walker v. Reiff, 13 W. D. 331 ; 25 Hun, 648 87, 88 Wallace v. Feely, 10 Daly, 331; affg. 61 How. Pr. 225; 1 Civ. Proc. 126; affd.' 88 N. Y. 646, no opin 40, 116 Wallace v. Hanna, 11 W. D. 213 ; 23 Hun, 292 107, 444 Wallace v. Naughton, 23 Supp. 809 note 112, 480 Wallach v. Riverside Bank, 206 N. Y. 434; affg. 119 A. D. 238 42 45, 250 Walsh V. Meyer, 25 W. D. 168 ; 3 S. R. 579 514 Walter v. De Graaf, 19 Abb. N. C. 406; 11 S. R. 274 48, 91, 96 123, 397, 454 Walton V. INieeks, 120 N. Y. 79; affg. 41 Hun, 311 350, 513, 514, 515 Walworth v. Anderson, 4 Edw. 281 535 Wanser v. DeNyse, 188 N. Y. 378; rvsg. 116 A. D. 796 6, 21 70, 241, 386, 530 Wanser v. DeNyse, 125 A. D. 209; affd. 192 N. Y. 537, no opin. .'. . 16 18, 233 Waring v. Waring, 7 Abb. Pr. 472 71, 73, 104, 118, 123, 163, 164 452, 453 Warner v. Schweitzer, 56 A. D. 623 311, 368 Ixx Table of Cases Cited. Page Warner v. Will, 5 Misc. 329 238 Warren v. Banning, 140 N. Y. 227 ; modifying 21 Supp. 883 260 424, 435, 504, 514 Warren v. Hall, 41 Hun, 466; 4 S. R. 48, W. v. Hill 273, 368 Warth V. Herman, 207 N. Y. 745 156, 270 Washington Ins. Co. v. Slee, 2 Paige, 365 117 Wasserman y. Taubin, 129 A. D..691 529 Waters v. Travis, 9 Johns. 450 491 Watson V. Church, 3 Hun, 80; 5 T. & C. 243 33, 80, 104 105, 109, 250, 370 Waugh V. Bailey, 4 Supp. 817; 52 Hun, 611; affd. 115 N. Y. 654, on opin. helow, W. v. Bailly 75 Webel V. Kelly, 111 A. D. 521 216, 221 Webster v. Kings County Trust Co., 145 N. Y. 275; affg. 80 Hun, 420 67, 300, 326, 331, 337, 338, 441 Webster Realty Co. v. Delano, 135 A. D. 488 144 Webster Realty Co. v. Gerarty, 202 N. Y. 530; aflfg. 135 A. D. 920. . 418 469 Weeks v. Frankel, 197 N. Y. 304; rvsg. 128 A. D. 223 187, 264 Weeks v. Tomes, 16 Hun, 349; aflfd. 76 N. Y. 601, on opin. below. . 103 454 Weil V. Radley, 31 A. D. 25; affd. 163 N. Y. 582, no opin... 237, 336 428, 430, 485 Weinheimer v. Ross, 205 N. Y. 518; rvsg. 140 A. D. 919 63, 412, 469 478 Weinheimer v. Ross, 214 N. 'i. 630; affg. 162 A. D. 933; modifying 80 Misc. 269 409, 412, 533 Weinstein v. Kratenstein, 150 A. D. 789 218 Weinstein v. Weber, 178 N. Y. 94; affg. 78 A. D. 645; approving 58 A. D. 112 20, 178, 196, 211, 265, 418 Weinstock v. Lcivison, 26 Abb. N. C. 244 ; 20 Civ. Proc. 1 ; 14 Supp. 64 '. 429, 430, 457 Weintraub v. Siegel, 133 A. D. 677; rvsg. 57 Misc. 246.. 16, 37, 216 307, 330, 338, 382, 427, 438, 470, 490 Weintraub v. Weil, 53 Misc. 325 341, 358 Weisendanger v. Westchester Trust Co., 58 Misc. 472 444 Weiss V. Schvpeitzer, 47 Misc. 297 273 409 Weissberger v. Wallach, 124 A. D. 382; see 135 A. D. 918; affd. , 201 N. Y. 590 436, 497, 506 Welsh V. Schoen, 59 Hun, 356; 13 Supp. 71 125, 129, 374, 425 Wentworth v. Braun, 78 A. D. 634; affg. 38 Misc. 702; affd. 175 N. Y. 515, no opin 242, 268, 419,458 Werner V. Noeth, 161 A. D. 911 393, 493 Werner v. Wheeler, 142 A. D. 358 259 Weseman v. Wingrove, 85 N. Y. 353; 12 W. D. 320; affg. 9 W. D. 434 124, 489 Wessel V. Cramer, 56 A. D. 30 4O1 459 Table of Cases Cited. Ixxl Page i\Yestchester & Bronx Realty & Development Co. v. Whitloek, 80 Misc. 489 54, 448 Westervelt v. Matheson, Hoflf. 36 493 Westown Realty Co. v. Keller, 143 A. D. 458 304, 305, 308 Wetmore v. Bruce, 118 N. Y. 319; aflfg. 22 J. & S. (54 Super.) 149 321, 308, 513 Weyh V. Boylan, 62 How. Pr. 397; affd. 63 How. Pr. 72, on opin. below; 14 W. D. 247; 26 Hun, 580 103, 118, 380 Whalen v. Stuart, 123 A. D. 446; rvsd. 194 N. Y. 495.. 435, 470, 487 495, 497 Wheeler v. Cluttcrbuck, 52 N. Y. 67 163 Wheeler v. Scully, 50 N. Y. 667 80, 83, 129, 340, 364 Wheeler v. Tracy, 17 J. & S. (49 Super.) 208; 18 W. D. 26.... 45, 62 63, 270 White V. Collins. Building & Construction Co., 82 A. D. 1 318 White V. Kane, 19 J. & S. (51 Super.) 295; 1 How. N. S. 382; 21 W. D. 180; 7 Civ. Proe. 267 180, 199, 251, 309 Whitloek, Matter of, 32 Barb. 48; 10 Abb. Pr. 316; 19 How. Pr. 380 140, 320 Whittemore v. Farrington, 76 X. Y. 452; affg. 12 Hun, 349; 5 W. D. 540 481 Wichman v. Aschpurwis, 23 J. & S. (55 Super.) 218; 28 W. D. 63; 14 Civ. Proc. 88 69, 88, 92, 294 Wicks V. Bowman, 5 Daly, 225 272 Wieland v. Muller, 65 How. Pr. 245 236, 254, 461 Wightman v. Schleifer, 18 Supp. 551; 63 Hun, 633 251 Wilcox V. Egan, 19 J. & S. (51 Super.) 273 356 Wilhelm v. Federgreen, 2 A. D. 483; affd. 157 N. Y. 713, on opin. below ' 9, 235, 242, 328, 332, 342 Wilhelm v. Wilkin, 149 N. Y. 447 ; affg. 75 Hun, 552 382, 384, 395 Williams v. Colwell, 14 A. D. 26; affg. 18 Misc. 399, on opin. below; 26 Civ. Proe. 66 110 Williams v. Haddock, 145 N. Y. 144; affg. 78 Hun, 429 65, 66 Williamsburgh Trust Co. v. Gottsch, 121 Supp. 890 302, 361 Williamson v. Banning, 86 Hun, 203 390 Williamson v. Berry, 8 How. (U. S.) 495 262 Williamson v. Field's Executors, 2 Sand. Ch. 533 126, 464 Willis V. Dawson, 34 Hun, 492; 20 W. D. 376 487 Wilmurt v. McGrane, 16 A. D. 412 24, 273, 275, 303, 308, 311, 313 343, 436 Wilsey v. Dennis, 44 Barb. 354 433, 437, 473, 474 Wilson V. Holden, 16 Abb. Pr. 133 339, 520 Wilson V. Lynt, 30 Barb. 124 184, 200 Wilson V. Parshall, 129 N. Y. 223; approving 4 Silv. Supm. 374; 7 Supp. 470 '. 77, 306, 474, 508 Wilson v. White, 109 N. Y. 59; 14 S. R. 46 100, 136, 213 Ixxii Table of Cases Cited. Page Wiltsie V. Shaw, 100 N. Y. 191;. 22 W. D. 247; affg. 29 Hun, 195; 16 W. D. 182 31, 309 Winne v. Reynolds, 6 Paige, 407.... 32, 44, 45, 64, 156, 269, 286, 321 368, 369, 466, 469, 489, 534 Wise V. Curry, 35 Misc. 634 284, 408 Withers v. Codwise, 2 Sand. Ch. 350 note 482 Withers v. Morrell, 3 Edw. 560 482 Witte V. Koerner, 123 A. D. 824; see 143 A. D. 948; 152 A. D. 935; 212 N. Y. 616 282 Woerz V. Rademacher, 120 N. Y. 62; rvsg. 6 S. R. 685, W. v. Radermacher 186, 209 Wohlfarth v. Chamberlain, 14 Daly, 178; 6 S. R. 207 428, 430, 519 Wolf V. Schmidt, 15 Daly, 107 ; 2 Supp. 705 429 Wolfe V. Lynch, 2 Dem. 610; rvsd. 33 Hun, 309 476 Wood V. Chew, 13 How. Pr. 86 509 Wood V. Martin, 66 Barb.- 241 357, 453 Wood V. Nesbitt, 62 Hun, 445; 16 Supp. 918; see 19 Supp. 423; also Matter of Est. of Wood,' 70 Hun, 230. .162, 178, 182, 187, 192, 448 Wood V. Oakley, 11 Paige, 400; aflfg. 4 Edw. 562 102, 127 Wood V. Squires, 1 Hun, 481; 3 T. & C. 468; rvsd. 60 N. Y. 191.. 152 295, 461, 533 Wood V. Taylor, 9 Misc. 640; aflfd. 11 Misc. 713, on opin. below 220 Woodenbury v. Spier, 122 A. D. 396 150, 271,436 Woodhull V. Little, 102 N. Y. 165; 23 W. D. 439; 1 S. R. 342. .114, 455 WoodruiT v. Bunce, 9 Paige, 443 482 Wormser v. Crooe, 120 A. D. 287 166 Wormser v. Garvey, 4 Hun, 476 147, 466, 506 Wormser v. Gehri, 55 Misc. 147 236 Wright V. Mayer, 47 A. D. 604 36, 253, 324, 326 Wronkow v. Oakley, 133 N. Y. 505; 28 Abb. N. C. 409; rvsg. 64 Hun, 217 ; 19 Supp. 51 ' .... 34, 127, 258, 259, 291 Wunnenberg v. Gearty, 36 Hun, 243 ; 7 Civ. Proc. 393 ; 2 How. Pr. N. S. 131, W. v. Gerarty; 21 W. D. 549 89, 91 Wyeth V. Sorchan, 38 Misc. 173 194, 428 Ziehen v. Smith, 148 N. Y. 558; rvsg. 73 Hun, 571; rvsg. 2 Misc. 487 ; 24 Supp. 922 58, 62, 64 Zorn v. McParland, 11 Misc. 555; 32 Supp. 770; afifg. 8 Misc. 126; affd. 155 N. Y. 684, no opin 53, 61, 294, 299, 385, 388, 389, 437, 485 Zweig V. Sweedler, 140 A. D. 319 325 TABLE OF STATUTES CONSTRUED. [Note, — This table does not include all statutes cited.] Revised Statutes. 1 K. S. 722, §§ 3-4 Wood v. Taylor, 9 Misc. 640. 1 R. S. 722, §>§ 3-4 Ramsay v. De Remer, 65 Hun, 212. 1 R. S. 727, §■§ 17, 129 Salmon v. Stuyvesant, 16 Wend. 321. 1 R. S. 730, §§ 63, 65 Belmont v. O'Brien, 12 N. Y. 394. 1 R. S. 730, § 66 Wilson v. Lynt, 30 Barb. 124. 1 R. S. 730, § 66 McPherson v. Smith, 49 Hun, 254. 1 R. S. 730, §§ 69, 71 Leggett v. Hunter, 19 N. Y. 445. 1 R. S. 731, § 71 Lahey v. Kortright, 132 N. Y. 450. 1 R. S. 733, §§ 81-84 Freeborn v. Wagner, 4 Keyes, 27. 1 R. S. 733, § 84 Hume v. Randall, 141 N. Y. 499. 1 R. S. 736, § 12 Faile v. Crawford, 30 A. D. 536. 1 R. S. 737, § 124 Doody v. Hollwedel, 22 A. D. 456. 1 R. S. 737, § 124 Merolla v. Lane, 122 A. D. 535. 1 R. S. 738, § 137 Todd v. Union Dime Savings Inst., 118 N. Y. 337. 1 R. S. 738, § 137 Leask v. Horton, 39 Misc. 144. 1 R. S. 739, § 142 Wilhelm v. Wilkin, 149 N. Y. 447. 1 R. S. 741, § 5 Mills v. Van Voorhies, 20 N. Y. 412. 1 R. S. 741, § 12 Dvrorsky v. Arndtstein, 29 A. D. 274. 1 R. S. 748 Spring v. Sandford, 7 Paige, 550. 1 R. S. 762, § 39 Boyd v. Schlesinger, 59 N. Y. 301. 1 R. S. 773, § 1 Greenland v. Waddell, 116 N. Y, 234. 2 R. S. 54, § 12 Matter of Valentine, 72 N. Y. 184. 2 R. S. 57, § 5 Byrnes v. Baer, 86 N. Y. 210. 2 R. S. 65, § 49 Wormser v. Croce, 120 A. D. 287. 2 R. S. 66, § 45 Guelich v. Clark, 3 T. & C. 315. 2 R. S. 101 Rigney v. Coles, 6 Bosw. 479. 2 R. S. 101, § 5 O'Connor v. Huggins, 113 N. Y. 511. 2 R. S. 109, § 55 Kerr v. McAneny, 17 W. D. 102. 2 R. S. 109, § 55 Correll v. Lauterbach, 12 A. D. 531. 2 R. S. 109, § 56 Egerton's Admr. v. Conklin, 25 Wend. 224. 2 R. S, 109, § 56 M'Dermut v. Lorillard, 1 Edw. Ch. 273. 2 R. S. 146, § 48 Schiffer v. Pruden, 64 N. Y. 47. 2 R. S. 174, § 8 Curtis v. Hitchcock, 10 Paige, 399. 2 R. S. 194, §§ 167-168 Merritt v. Farmers', etc., Co., 2 Edw. 547. ( Ixxiii ) Ixxiv Table of Statutes Construed. Revised Statutes — Continued. 2 R. S. 194, § 170 Jenkins v. Fahey, 73 N. Y. 355. 2 R. S. 203, § 176 Muller v. Struppman, 6 Abb. N. C. 343. 2 R. S. (2d ed.) 221 N. Y. Steam Co. v. Stern, 46 Hun, 206. 2 R. S. 287, § 68 Looff v. Lawton, 97 N. Y. 478. 2 R. S. 301 Wood V. Squires, 1 Hun, 481. 2 R. S. 301, § 48 Katz v. Kaiser, 10 A. D. 137. 2 R. S. 317 Gotendorf v. Goldschmidt, 83 N. Y. 110. 2 R. S. 317-327 Mead v. Mitchell, 17 N. Y. 210. 2 R. S. 322, § 35 Cheesman v. Thorn, 1 Edw. 629. 2 R. S. 329, § 79 Cheesman v. Thorn, 1 Edw. 629. 2 R. S. 359, §§ 5-6 Matter of Townsend, 203 N. Y. 522. 2 R. S. 370, §§ 42, 44 Goldman v. Kennedy, 49 Hun, 157. 2 R. S. 545 Loring v. Hailing, 15 Johns. 119. 2 R. S. (4th ed.) 641, § 25.. Rogers v. McLean, 34 N. Y. 536. , 3 R. S. 156, §§ 45, 49 Dunham v. Minard, 4 Paige, 441. 3 R. S. (6th ed.) 199, § 102. Mygatt v. Somerville, 23 Supp. 808. 3 R. S. (5th ed.) 275-276.... Matter of Conover, 27 How. Pr. 224. 3 R. S. 605 Sandford v. White, 56 N. Y. 359. 3 R. S. (7th ed.) 2198, § 12. Doremus v. Doremus, 66 Hun, 111. 3 R. S. (7th ed.) 2215, §§ 1- 17 Irving v. Campbell, 121 N. Y. 353. 4 R. S. (8th ed.) 2472, §§ 18, 25 Thorn v. Mayer, 12 Misc. 487. Real Pkopeett Law. §§ 26-27, 30, 49 N. Y. Security, etc., Co. v. Schoen- berg, 87 A. D. 262. § 56 Price v. Pestka, 54 A. D. 59. § 77 [97] Hubbard v. Housley, 43 A. D. 129. §§ 83-87 [103-107] Van Wyck v. Richmail, 33 Misc. 404. § 85 Matter of Mills, 28 A. D. 258. §§ 85-87 Webster Realty Co. v. Delano, 135 A. D. 488. §§ 85-87 Von Glahn v. Heins, 128 A. D. 167. §§ 149-152 See Freeborn v. Wagner, 4 Keyos, 27. § 153 [173] Gardner v. Dembinsky, 52 A. D. 473. § 154 Gulick v. Griswold, 160 N. Y. 399. § 155 Merolla v. Lane, 122 A. D. 535. § 186 Schlesinger v. Klinger,112 A. D. 853. § 208 [243] Leask v. Horton, 39 Misc. 144. § ^24 [259] Griffin v. Baust, 26 A. D. 553. Table of Statutes Construed. Ixxv Real Peopeety Law — Oontimied. § 241 Baecht v. Hevesy, 115 A. D. 509. § 246 See Wilhelm v. Wilkin, 149 N. Y. v> 447. |§ 370-435 Partenfelder v. People, 211 N. Y. 355. § 385 Barkenthien v. People, 212 N. Y. 175; Meighan v. Rohe, 166 A. D. 175. Consolidation Act. § 86 Broadbelt v. Loew, 15 A. D. 343. § 661 Wilmurt v. McGrane, 16 A. D. 412. § 677 Forster v. Scott, 136 N. Y. 577. Gbeateb New Yoek Chaeter. § 4^9 Acme Realty Co. v. Schinasi, 215 N. Y. 495. §§ 1035-1039 vTax Lien Co. v. Schultze, 213 N. Y. 9. Banking Law. § 19 Northern Bank v. Drury, 152 A. D. 64; Lafayette Trust Co. v. Beggs, 213 N. Y. 280. Decedent Estate Law. § 26 Crocker v. Mulligan, 154 A. D. 711. Code or Pbooedure. § 132 Ostrom v. McOann, 21 How. Pr. 431. § 132 '. Butler v. Tomlinson, 38 Barb. 641. § 132 Weeks v. Tomes, 16 Hun, 349. § 132 Fuller v. Scribner, 76 N. Y. 190. § 132 Back v. Crussell, 2 Abb. Pr. 386. § 135 Van Wyck v. Hardy, 39 How. Pr. 392. § 135 Home Ins. Co. v. Head, 30 Hun, 405. § 135 Wheeler v. Scully, 50 N. Y. 667. §§ 137, 139 Butler v. Tomlinson, 38 Barb. 641. §§ 138, 173 Althause v. Radde, 3 Bosw. "410. § 175 Sandford v. White, 56 N. Y. 359. § 304 Smith v. Riggs, 2 Duer, 622. § 401 Disbrow v. Folger, 5 Abb. Pr. 53. § 448 Althause v. Radde, 3 Bosw. 410. Code or Civii. Procedure § 438 Sonn v. Kennedy, 51 Misc. 234. § 439 Empire City Bank v. Silleek, 98 A. D. 139. §§ 441, 471 Crouter v. Crouter, 133 N. Y. 55. Ixxvi Table of Statutes Consteued. Code of Civil Peocedube — Continued. § 452 Van Williams v. Elias, 106 A. D. 288. § 471 Ingersoll v. Mangam, 84 N. V. 622. §§ 471, 473 Piatt v. Finck, 60 A. D. 312. § 473 Uhl V. Loughran, 16 Civ. Proc. 386. §§ 721, 723 Stuyvesant v. Weil, 167 N. Y. 421. § 723 Tobin v. Carey, 34 Hun, 431. § 763 Brevoort v. Brevoort, 115 N. Y. 656. § 955 Lalor v. Tooker, 130 A. D. 11. § 1218 Newins v. Baird, 19 Hun, 306. § 1251 Lafayette Trust Co. v. Beggs, 213 N. Y. 280. § 1256 Wronkow v. X)akley, 133 N. Y. 505; § 1471 Goldman v. Kennedy, 49 Hun, 157. § 1499 Volz V. Steiner, 67 A. D. 504. § 1499 '. Snow v. Monk, 81 A. D. 206. § 1533 Soheu v. Lehning, 31 Hun, 183. § 1538 Reed v. Reed, 107 N. Y. 545. § 1538 Bernhardt v. Kurz, 38 Supp. 103. § 1540 Jaekson v. Bradhurat, 25 Civ. Proe. 228. § 1562 Connor v. Connor, 20 Civ. Proe. 308. § 1632 Mygatt v. SomerviUe, 23 Supp. 808. §§ 1638-165a Lese v. Metzinger, 54 Misc. 151. § 1676 Morgan v. Fullerton, 9 A. D. 233. § 1678 Williams v. Colwell, 14 A. D. 26. § 1678 Gonlen v. Rizer, 109 A. D. 537. § 1679 McKean v. Hill, 166 A. D. 18. §§ 2320-2340, 2348... Dunn v. Huether, 64 Hun, 18. § 2348 Matter of Aseh, 75 A. D. 486. § 2348 Johnston v. Garvey, 139 A. D. 659. § 2349 Rosen-feld v. Miller, 131 A. D. 282. §§2352,2356 Blanehard v. Blanehard, 33 Misc. 284. § 2354 Kelly v. Pitcher, 4 Supp. 3. § 2642 Hyatt v. Aguerro, 56 Super. 63. § 2642 r>raper v. Montgomery, 108 A. D. 63. § 2708 Bradley v. Krudop, 128 A. D. 200. § 2749 Matter of Bridgeport Brass Co., 77 Misc. 69; Coogan v. Oekershausen, 55 Super. 286. § 2750 O'Flynn v. Povi^ers, 136 N. Y. 412 ; Monroe v. Musica, 166 A. D. 929. §'§ 2752-2756 Matter of Townsend, 203 N. Y. 522, § 2759 Parker v. Beer, 173 N. Y. 332. Table of Statutes Construed. Ixxvii Code of Civil Procedure — Continued. § 2818 Lane v. Hustace, 154 A. D. 636 ; Royce v. Adams, 123 N. Y. 402. § 3347 \^.' Goldman v. Kennedy, 49 Hun, 157. Laws of 1703, June 19 Bradley v. Crane, 201 N. Y. 14. 1719, e. 372 Lembeek, etc.. Brewing Co. v. Rosan- ste'in, 168 A. D. 563. 1793, Mar. 20 Clute v. Robison, 2 Johns. 595. 1803, Apr. 5 Clute v. Robison, 2 Johns. 595. 1806, e. 52 . . ^ Matter of Trustees of N. Y. P. E. P. School, 31 N. Y. 574. 1813, c. 60 Selkir v. Klein, 50 Misc. 194. " 1814, c. 78 Doe v. Mclutyre, 4 Duer, 171. 1815, e. 89 Doe v. Mclntyre, 4 Duer, 171. 1815, c. 199 Bardes v. Herman, 144 A. D. 772. 1816, e. 56 Doe v. Mclntyre, 4 I>uer, 171. 1816, c. 115 Bennett v. Mayor, 1 Sandf. 485. 1824, c. 193, § 5...' Seaman v. Hioka, 8 Paige, 655. 1827, c. 289 Matter of Trustees of N. Y. P. E. P. School, 31 N. Y. 574. 1831, >;. 200 Sandfordv. White, 56 N. Y. 359. 1834, c. 150 Gearty v. Mayor, 49 How. Pr. 33. 1835, c. 189 Phillips v. Sehiffer, 64 Barb. 548. 1838, p. 289 Hasbrook v. Paddock, 1 Barb. 635. 1840, 0. 326 Bennett v. Mayor, 1 Sandf, 485. 1840, c. 342 Curtis v. Hitchcock, 10 Paige, 399. 1840, i;. 342 Wood v. Oakley, 11 Paige, 400. 1842, c. 277 Sandford v. White, 56 N. Y. 359. 1844j c. 180, § 49 Wood v. Squires, 1 Hun, 481. 1844, c. 348 Stanley v. Freckelton, 65 Hun, 138. 1844, (T. 346 Pitt v. Amend, 84 Hun, 492. 1845, c. 115 Greer v. Sankston, 26 How. Pr. 471. 1845, c. 115 Goodrich v. Russell, 42 N. Y. 177. 1845, c. 115 Luhrs v. Eimer, 80 N. Y. 171. 1845, c. 115 Wieland v. Renner, 65 How. Pr. 245. 1847, c. 280 ■ Fink v. Wallach, 109 A. D. 718. 1848, c. 319 Selkir v. Klein, 50 Misc. 194. 1849, p. 151 Powers v. Bergen, 6 N. Y. 358. 1849, c. 375 Mcllvaine v. Kadel, 3 Robt. 429. 1849, e. 375 Allen >'. Reynolds, 36 Super. 297. 1850, 0. 82 ". Kelley's Estate, 1 Abb. N". q. 102. 1860, c. 82 Matter of Dolan, 88 N. Y. 309. 1851, c. 91, tit. 4, § 20 Wood v. Squires, 1 Hun, 481. 1852, e. 277 Clark v. Clark, 21 How. Pr. 479. 1852, c. 277 Struppman v. Muller, 52 How. Pr. 211. 1853, c. 442 Leggett v. Hunter, 19 N. Y. 445. 1853, c. 443 Leggett v. Hunter, 19 N. Y. 445. Ixxviii Table of Statutes Construed. 'Code of Civil Pkocedure — Continued. 1853, c. 466 Home Ins. Co. v. Head, 30 Hun, 405. 1853, c. 511 Steinhardt v. Baker, 163 N. Y. 410. 1854, c. 282 Blain v. Taylor," 19 Abb. Pr. 228. 1855, e. 327 Jackson v. Babcoek, 16 N. Y. 246. 1859, c. 392 Matter of Trustees of N. Y. P. E. P. School, 31 N. Y. 574. 1860, c. 90 Allen v. Reynolds, 36 Super. 297. 1860, 0. 348 Brennan v. Willson, 71 N. Y. 502. 1860, i;. 360 Abbott v. James, 111 N. Y. 673. 1861, c. 340 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234. 1861, c. 340 Brooklyn v. Copeland, 106 N. Y. 496. 1861, e. 340 Seitz v. Groves, 99 A. D. 629. 1862, c. 172 Allen v. Reynolds, 36 Super. 297. 1864, p. 732 Matter of Bull, 45 Barb. 334. 1864, c. 311 Bromley v. Miller, 2 T. & C. 575. 1864, c. 311 Lockwood v. Lockwood, 51 Hun, 337. 1865, p. 376 Matter of Bull, 45 Barb. 334. 1866, u. 710 Matter of Evergreens, 47 N. Y. 216. 1867, u. 257 Goodrich v. Russell, 42 N. Y. 177. 1867, e. 697 Fearing v. Irwin, 4 I>aly, 385. 1868, c. 594 ; O'Flynn v. Powers, 136 N. Y. 412. 1869, c. 569 Gaskin v. Meek, 42 N. Y. 186. 1869, e. 670 German-American Cto. v. Meyers, 32 A. D. 41. 1869, c. 890 Post v. Hazlett, 12 Supp. 838. 1870,0.373 Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234. 1870, e. 519, tit. 7 Neber v. Hatch, 10 Abb. N. C. 431. 1870, c. 717 Dwyer v. Dwyer, 13 Abb. N. S. 269. 1871, c. 419 Matter of Evergreens, 47 N. Y. 216. 1871, u. 625 Mitchell v. Smith, 53 N. Y. 413. 1871, i;. 706 McGabe v. Kenny, 52 Hun, 514. 1872, c. 23 Brevoort v. Grace, 53 N. Y. 245. 1872, c. 479 Ebling v. Dreyer, 149 N. Y. 460. 1872, c. 680 Bromley v. Miller, 2 T. & C. 575. 1872, c. 680 Lockwood v. Lockwood, 51 Hun, 337. ,1873, u. 211 Parkinson v. Jaeobson, 18 Hun, 353. 1874, c. 26l Luhrs v. Eimer, 80 N. Y. 171.' 1874, c. 261 Wieland v. Renner, 65 How. Pr. 245. 1874, c. 604 Wagner v. Perry, 47 Hun, 516. 1875, c. 479 McCrea v. Jacobs, 19 Abb. N. C. 188. 1875, c. 545 McCahill v. Hamilton, 20 Hun, 388. 1875, c. 545 N. Y. Steam Co. v. Stern, 46 Hun, 206. Table of Statutes Construed. Ixxix Code of Civil Procedure — Oontinued. 1875, c. 545 Kip v. Hirsh, 103 N. Y. 565. 1876, c. 439 Kerrigan v. Force, 68 N. Y. 381. 1876, c. 439 Dickinson v. Dickey, 14 Hun, 617. 1876, 0. 439 Abbott v. Curran, 98 N. Y. 665. 1876, e. 439 See Sproule v. Davies, 171 N. Y. 277. 1878, c. 300 Wronkow v. Oakley, 133 N. Y. 505. 1879, c. 542 Jones v. Freeman, 22 W. D. 524. 1880, c. 245 Moulton v. Moulton, 47 Hun, 606. 1880, c. 550 Chase v. Chase, 95 N. Y. 373. 1881, c. 184, § 20 Odell v. Odell, 21 W. D. 90. 1881, c. 641 Hornberger v. Miller, 28 A. D. 199. 1881, c. 682 Wallace v. Feely, 10 Daly, 331. 1881, c. 689 Lan§ v. Kiendl, 27 Hun, 66. 1881, c. 689 Spencer v. Merchant, 100 N. Y. 585. 1882, c. 185 Correll v. Lauterbach, 12 A. D. 531. 1882, c. 185 Griffin v. Baust, 26 A. D. 553. 1883, c. 114, §§ 3-5 Hobbs v. Scott, 122 A. D. 399. 1884, c. 26 Goebel v. Iffla, 111 N. Y. 170. 1885, c. 405 Doody v. HoUwedel, 22 A. D. 456. 1886, c. 637 Goldman v. Kennedy, 49 Hun, 157. 1887, c. 450 Lancaster v. Amsterdam Co., 140 N. Y. 576. 1888, c. 583, tit. 19 Gotthelf v. Stranahan, 138 N. Y. 345. 1889, c. 167 Sproule v. Davies, 171 N. Y. 277. 1890, c. 276 Matter of Field, 131 N. Y. 184. 1892, c. 169 Roman Catholic Church v. Niles, 86 Hun, 221. 18P2, c. 399, § 3 Kitching v. SVar, 26 Misc. 436. 1892, 0. 687 Lancaster v. Amsterdam Co., 140 N. Y. 576. 1893, e. 452 Thall v. Dreyfus, 84 A. D. 569. 1893, c. 452 Phillips v. Pike, 121 A. D. 753. 1894, c. 740 Grace v. Bowden, 10 A. D. 541. 1895, c. 553 Fink v. Wallach, 109 A. D. 718. 1895, c. 559 Selkir v. lOein, 50 Misc. 194. 1895, c. 723 Selkir v. Klein, 50 Misc. 194. 1895, c. 789 Warner v. Schweitzer, 56 A. D. 623. 1895, c. 1006 Barber v. Woolf, 167 A. D. 627. 1896, c. 547, § 85 Matter of Aseh, 75 A. D. 486. 1896, e. 610 Harrison v. Piatt, 35 A. D. 533. 1896, c. 610 Merges v. Ringler, 34 A. D. 415. 1896, c. 612 Warner v. Schweitzer, 56 A. D. 623. 1897, c. 136 Matter of Aseh, 75 A. D. 486. 1897, c. 136 Webster Realty Co. v. Delano, 135 ' A. D. 488. Ixxx Table of Statutes Construed. Code op Ciyil Pbocbduke — Continued. 1897, c. 682 Strasbourger v. Falkenberg, 38 A. D. 627. 1898, c. 257 Mt. Sinai Hospital v. Hyman, 92 A. D. 270. 1899, c. 646 556 & 558 Fifth Av. Co. v. Lotus Club, 129 A. D. 339. 1900, 0. 166 Mt. Sinai Hospital v. Hyman, 92 A. D. 270. 1900, c. 307 Eiseman v. Josephthal, 71 Misc. 288. 1901, c. 334, § 129 Title Guarantee, etc., Co. v. Weso- lick, 115 A. r>. 608. 1902, c. 580 Elinsky v. Berger, 87 A. D. 584. 1904, c. 750 Matter of Bridgeport Brass Co., 77 Misc. 69. 1905, c. 368 Brown v. Lawrence Park Co., 133 A. D. 753. 1909, e. 52 Barlcenthien v. People, 212 N. Y. 36. 1910, c. 627 Barkenthien v. People, 212 N. Y. 36; Partenf elder v. People, 211 N. Y. 355. TABLE OF WILLS CONSTRUED. Aokerly, William Suffolk 1894, Oct. 23 Graham v. Ackerly, 120 A. D. 430. Albro, Benjamin New York 1881, Nov. 17 Fisher v. Wilcox, 77 Hun, 208; Phillips v. Wilcox, 12 Misc. 382. Amory, James New York 1835, Apr. 3 Amory v. Lord, 9 N. Y. 403. Appleby, William New York 1870, Feb. 14 Van Wyck v. Eichman, 33 Misc. 404. Armstrong, Hamil- New York 1873, Jan. 4 Armstrong v. Wernstein, 6 ton Supp. 148. Asch, Simon A. New York 1892, Mar. 31 Matter of Asch, 75 A. D. 486. Baker, John Matter of N. Y. P. E. P. School, 31 N. Y. 574. Ball, Abbie Maria Mass. 1892, Nov. 18 Barnes v. Luther, 77 Hun, 234. Bangs, Francis N. New York 1885, Dec. 14 Bangs v. Hill, 25 W. D. 9. Barry, David New York 1883, June 18 Nelson v. Russell, 1^5 N. Y. -137. Baumgrass, Wm Baumgrass v. Brickell, 7 S. R. 685. Benedict, James Westchester 1842, Sept. 6 Benedict v. Webb, 98 N. Y. 460. Benrimo, Hannah New York 1893, Jan. 1 Phillips v. Pike, 121 A. D. 753. Benson, Arthur W. Kings 1890, Jan. 10 Benson v. Corbin, 145 N. Y. 351. Boerum, Agnes Kings 1875, Nov. 24 Greenland v. Waddell, 116 N. Y. 234. Brooks, Benjamin New York 1847, July 6 Noble v. Cromwell, 26 Barb. 475. Brown, Adolphus New York 1875, Apr. 5 Weinstein v. Weber, 178 N. Y. 94. Brown, Alexander Clody v. Southard, 57 Misc. S. 242. Buel, Jesse Albany 1839, Oct. 21 Buel v. Southwick, 70 N. Y. 581. Burrows, Elisha New York 1834, Mar. 7 Burrows ^r. Stumm, 22 How. Pr. 463; Roome v. Phil- lips, 24 N. Y. 463. ( Ixxxi ) Ixxxii Table op Willsi Construed. Butler, Esther M 1875 Behrman v. Von Heyn, 15 Supp. 604. Chase, Philo Queens 1899, Jan. 12 Kecht v. Hersehman-BIeier- Edelstein Co., 139 A. D. 300. Ohesebrough, Nich- New York 1899, Nov. 23 Urbauer v. Cranstoun, 60 olaa H. A. D. 51. Clark, Aaron Kings 1861, Oct. 1 Turco v. Trimboli, 152 A. D. 431. Cockalete, Sarah Rockland 1896, Sept. 28 Guernsey v. Van Kiper, 126 A. D. 368. Connolly, Charles New York 1869, June 2 Camp v. Cronkright, 59 M. Hun, 488. Cornell, Thomas P. Kings 1885, Oct. 19 Cornell v. Cornell, 14 S. R. 612. Cornwall, Jeremiah Kings 1868, Sept. 23 ClifiFord v. Morrell, 22 A. D. 470. Cotton, German New York 1883, May 4 Cotton v. Burkelman, 142 N. Y. 160. Cromwell, Richard Matter of Mills, 28 A. D. 258. Cuming, Louisa W. Kings 1856, Oct. 29 Kelso v. Lorillard, 8 Daly, 300. Crocker, Crocker v. Mulligan, 154 A. D. 711. Dale, Herman Kings 1906, Jan. 19 Schwartz v. Rehfuss, 129 A. D. 630. De Mott, Isaac Anderson v. Davison, 42 Hun, 431. De Peyster, Eliza- New York 1821, May 25 Champlin v. Haight, 7 Hill, beth 245. De Veaux, Samuel Niagara 1852, Aug. De Veaux College v. High- lands Land Co., 63 A. D. 461. Dickinson, John Kings 1898, Jan. 8 Kent v. Shepard, 115 A. D. 64. Dodge, Joseph Dutchess 1846, June 4 Swan v. Packer, 161 A. D. 511. Dominick, Jacob P. New York 1831, June 10 Dominick v. Michael, 4 Sandf. 374. Donaldson, Catha- New York 1866, July 16 Hornberger v. Miller, 28 A. rine D. 199. Douglass, John Kings 1879, Oct. 20 McLoughlin v. Maher, 17 Hun, 215. Doyle, John New York 1876, June 12 Doyle v. Mulvihill, 16 W. D. 361. Table of Wills Construed. Ixxxiii Duchardt, Henry New York 1900, May 23 Duchardt v. Cassidy, 70 A. D. 102. Dunshee, Samuel New York 1854, Feb. 21 Dunahee v. Goldbacher, 56 Barb. 579. Eddy, Lucy H. New York 1881, May 5 Pollock v. Hooley, 67 Hun, 370. Eschbaoh, Marga- New York 1906, June 9 Furst v. Bohl, 183 A. D. ret F. 627. Eyclesheimer, Polk (Fla.) 1909, June 9 Eyclealieimer v. Hunter, 162 Peter D. A. D. 643. Failes, George Westchester 1846, June 27 Paile v. Crawford, 30 A. D. 536. Fely, Francis Kings 1895, Feb. 11 Sweet v. Schliemann, 95 A. D. 266. Fisher, Alexander New York 1883, Mar. 26 Beams v. Mela, 10 Supp. M. ' 429. Flassilard, John F. New York 1858, Apr. 7 Leggett v. Firth, 132 N. Y. 7. Forster, George H. New York 1889, May 23 Forster v. Winfield, 142 N. Y. 327. Fouque, Francois New York 1884, Dec. 31 Black v. Williams, 51 Hun, 280. Francis, Pierre K. New York 1875, Mar. 1 Temple v. Sammis, 97 N. Y. 526. Freedman, Solomon New York 1877, Oct. 10 Steinhardt v. Cunningham, 130 N. Y. 292. Fuller, Jane A. Rhodes v. Caswell, 41 A. D. 229. Fulton, George New York 1875, June 21 Fulton v. Edgar, 19 W. D. 429. Gallagher, Charles Blauvelt v. Gallagher, 22 Misc. 564; Cook v. Sack- ett, 110 A. D. 322. Gallagher, Thomas Kings 1891, Oct. 28 Gallagher v. Quinlan, 10 A. D. 402. Gerarty, Thomas New York 1882, Mar. 6 Kilpatrick v. Barron, 125 H. N. Y. 751. Gilbert, Prosper L. Albany 1870, Apr. 13 Wormser v. Croce, 120 A. D. 287. Godfrey, Hannah Wilson v. Lynt, 30 Barb. 124. Goetz, Louis 1872, Sept. 4 Goetz v. Ballou, 64 Hun, I 490. Gomez, Charlotte New York 1849, Dec. 12 Matter of Baer, 147 N. Y. 348. Hablawitz, John Kings 1876, Mar. 7 Schult v. Moll, 132 N. Y. 122. Ixxxiv Table of Wills Construed. Hagemeyer, George Kings 1892, Dee. 12 Hagemeyer v. Saulpaugh, 97 A. D. 535. Haight, Mary Ellen New York 1895, Apr. 18 Myers v. McCullagh, 63 A. D. 321. Hardee, John L. New York 1892, Mar. 16 Davidson v. Jones, 112 A. D. 254. Harrison, Richard New York. 1828, Feb. Ogden v. Smith, 2 Paige, 195. Hart, Gilbert H Carpenter v. Bonner, 26 A. D. 462. Hart, John C. Westchester 1872, June 5 Matter of Koss, 177 N. Y. 371. Healy, Ithamar New York 1817, Feb. 20 Daly v. Greenberg, 69 Hun, 228. Heaney, Arthur J. Kings 1901, Dee. 30 O'Reilly v. Piatt, 80 A. D. 348. Held, Samuel J. New York 1892, July 12 Boskowitz v. Held, 15 A. D. 306. Herriot, Warren Westehester 1882, Apr. 18 Herriot v. Prime, 155 N. Y. 5. Hersee, Thompson Erie 1884, Dec. 9 Hersee v. Simpson, 154 N. Y. 496. Higgins, Sarah E. Kings 1889, Feb. 8 Van Winkle v. Fowler, 52 Hun, 355. Hildebrand, John New York 1891, Apr. 30 Danaher v. Hildebrand, 72 H. G. Misc. 240. Hitchcock, Parley v. Seeor, 167 A. D. 80. Hopkins, Susan 1873, May 8 Hopkins v. Hopkins, 1 Hun, 352. Hunt, Samuel I. New York 1888, Feb. 20 Bradford v. Mogk, 55 Hun, 482. Hurlbut, ElisHa P. Albany 1889, Dec. 9 Draper v. Montgomery, 108 A. D. 63. Hutton, Benjamin New York 1884, May 22 Landon v. Bauer, 23 W. D. H. 95. Isham, William B. New York 1909, Apr. 28 Mygatt v. Maslen, 141 A. D. 468. Ivins, Augustus Kings 1883, Oct. 12 Buchanan v. Tebbetts, 69 Hun, 81. Jackson, Abram W. Kings 1866, July 28 Farrar v. McCue, 89 N. Y. 139. Jacobs, Joseph New York 1867, Nov. 13 Byrnes v. Baer, 86 N. Y. 210. Johnson, Primrose Broome 1897, July 30 Johnson v. Ross, 160 A. D. S. 866. Table of Wills Construed. Ixxxv Jones, Daniel D. New York 1852, Get. 18 Bernstein v. Solomon, 42 A. D. 621. Jones, Isaac F. New York 1871, Jan. Guliok v. Griswold, 160 N. Y. 399. Jones, John M. New York 1902, June 24 Hardenbergh v. McCarthy, 130 A. D. 538. Jones, Mary A. Kings 1877, May 29 Boehmcke v. McKeon, 119 A. D. 30. Kelly, Hugh New York 1887, Mar. 2 Carroll v. Conley, 8 Supp. 865. Kennedy, Thomas New York 1881, Mar. 10 Kennedy v. Hull, 15 W. D. 95. Kerr, Thomas McMulkin v. Bates, 46 How. Pr. 405. King, Anthony New York 1877, Jan. 17 "Salomon v. Lawrence, 52 Super. 154. Kip, Jacobus New York 1805, July 25 Simis v. MoElroy, 15 Supp. 19. Kirk, Andrew Albany 1857 Kirk v. Kirk, 137 N. Y. 510. Klett, Frederick Westchester 1893, Apr. Lewine v. Gerardo, 60 Mists. 261. Knapp, William H. Suffolk 1877, Nov. 19 Knapp v. Knapp, 46 Hun, 190. Kondolf, Mathias Monroe 1912, Aug. 2 Kondolf v. Britton, 160 A. D. 381. Kortright, Nicho- New York 1874, Apr. 1 Lahey v. Kortright, 132 N. las G. Y. 450. Landon, Charles G 1883 Landon v. Walmuth, 76 Hun, 271. Lefferts, Leffert Kings 1847, May 15 Brevoort v. Grace, 53 N. Y. 245. Lefferts, William Brevoort v. Brevoort, 70 N. Y. 136. Leutzbach, Philip Strube v Leutzbach, 12 Misc. 216. Lippincott, Hannah New York 1879, Dec. 16 Fish v. Coster, 28 Hun, 64. A. Lord, Joseph N. New York 1857, Apr. 23 Cussaok v. Tweedy, 126 N. Y. 81. Low, Henry E. Orange 1888, Dec. 18 Eoyee v. Adams, 123 N. Y. 402. Luther, Julia M. Kings 1888, Mar. 20 Barnes v. Luther, 77 Hun, 234. Macomber, Sarah New York 1873, Apr. 10 O'Flynn v. Powers, 136 N. Y. 412. Malone, George New York 1851; Sept. 4 Heck v. Volz, 14 S. E. 409. Ixxxvi Table of Wills Consteued. March, John Pyue New York 1874, Jan. 20 Hamilton v. N. Y. S. E. Bldg. Co., 20 Hun, 88. Marsh, Thomas New York 1856, Apr. 23 Norton v. Duflfy, 15 W. D. 529. Martine, Matilda Guggenheimer v. Sullivan, 12 W. D. 541. Maui-er, Susan M. New York 1893, May 26 Wright v. Mayer, 47 A. D. 604. Mayer, John M. New York 1877, Nov. 7 Mayer v. McCune, 59 How. Pr. 78. McConnell, Thomas New York 1871, Sept. 14 Roarty v. McDermott, 146 N. Y. 296. M'Cready, Benja- New York 1893, Jan. 28 M'Cready v. Met. L. I. Co., min W. 83 Hun, 526. McDonald, Angus Stewart v. Hamilton, 37 Hun, 19. McDougall, Susan- New York 1895, June 25 McDougall v. Dixon, 19 A. nah D. 420. McKie, John New York 1828, Oct. 6 Fleming v. Burnham, 100 N. Y. 1. Meehin, Francis New York 1875, May 7 Noonan v. Brennemann, 54 Super. 337. Messenger, Harry Kings 1880, July 6 Messenger v. Casey, 18 W. D. 71. Metzendorf, Anton Kings 1898, Aug. 29 Weinstein v. Kratenstein, 150 A. D. 789. Miller, Franz H. New York 1883, Mar. 23 Miller v. Caragher, 35 Hun, N 485. Miller, William H. New York 1870, Apr. 13 Lese v. Miller, 71 A. D. 195. Mitchell, George C. Queens 1898, Dec. 22 Mitchell v. Van Allen, 75 A. D. 297. Monarque, ■ Jere- New York 1869, Mar. 18 Monarque v. Monarque, 80 miah H. N. Y. 320. Morgan, William New York 1911, Oct. 6 Morgan v. Collins, 152 A. Rogers D. 158. Mortimer, John New York 1875, Oct. 21 Campbell v. Stokes, 142 N. Y. 23. Morton, William Morton v. Morton, 8 Barb. 18. Mott, Henry New York 1840, Aug. 17 Mott v. Ackerman, 92 N. Y. - 539; Oiiderdonk v. Acker- man, 62 How. Pr. 318. Mullanphy, John Clemens v. Clemens, 37 N. Y. 59. Munroe, Mary A. New York 1906, Jan. 30 Burnham v. White, 117 A. H. D. 515. Table of Wills Oonstbubd. Ixxxvii Murdock, James Ulster 1900, May 29 Murdoek v. Kelly, 62 A. V. 562. ' Noe, A,nn L. New York 1896, Aug. 20 Hubbard v. Housley, 43 A. D. 129. Nostrand, George Queens 1889, Mar. 28 Hilliker v. Bast, 64 A. D. 552. Osborn, George L Hilton v. Sowenfeld, 53 Misc. 152. Osborne, Willi,am New York 1842, June 14 Hutehings v. Baldwin, 7 Bosw. 326. Outwater, James Dutchess Freeborn v. Wagner, 4 Keyes, 27. Palmer, John P. New York 1858, Feb. 26 Bruner v. Meigs, 64 N. Y. 506. Paret, John New York 1866, Nov. § Paret v. Keneally, 30 Hun, 15. Parker, Asa W. Kings 1900, Apr. 9 Parker v. Beer, 173 N. Y. 332. Pearsall, Thomas New York 1807, Apr. 9 Baker v. Lorillard, 4 N. Y. 257. Pease, William J. New York 1888, Mar. 31 Siegel v. Anger, 13 Abb. N. C. 362. Pell, Elijah New York 1798, Nov. 19 Miller v. Macomb, 26 Wend. 229; Macomb v. Miller, 9 Paige, 262; Baker v. Lorillard, 4 N. Y. 257. Perry, Harriet E. Kings 1868, May 11 Bromley v. Miller, 2 T. & C. 575. Peterson, Christo- Kings 1886, Nov. 22 Hickey v. Peterson, 9 Supp. pher 917. Poillon, Alexander New York 1874, Nov. 10 Forster v. Civill, 20 Hun, C. 282. Poillon, Cornelius New York 1881, July 28 Huber v. Case, 93 A. D. 47&. C. Post, Gerardus New York 1833, Nov. 18 Leggett v. Hunter, 19 N. Y. 445. Prince, Charlotte G Knevals v. Prince, 10 Supp. 676. Ramsay, Henry Ramsay v. De Remer, 65 Hun, 212. Randell, John New York 1851, Feb. 21 Eells v. Lynch, 8 Bosw. 465. Ranhofer, Charles New York 1899, Nov. 1 Ranhofer v. Realty Co., 143 A. D. 237. Raynor, William H. New York 1874, Nov. 16 Argall v. Raynor, 20 Hun, 267; Scholle v. Scholle, 113 N. Y. 261; Mutual Life Ins. Co. v. Wood*. 121 N. Y. 302. Ixxxviii Table of Wills Oonstkued. Eeiss, Anna M. New York 1901, Nov. 19 Tolosi v. Lese, 120 A. D. 53. Rennert, John C. New York 1872, Dec. 20 Guggenlieimer v. Sullivan, 12 W. D. 541. Reynolds, David New York 1844, June 15 Hoepfner v. Sevestre, 10 Supp. 51. Rhinelander, Wil- New York 1825, Sept. 14 Chwatal v. Schreiner, 148 liam N. Y. 683. Richardson, Simon Kings 1850, Nov. 26 Richardson v. Sharpe, 29 Barb. 222. Roake, John CoUett Westchester 1879, Oct. 4 Smith v. Hull, 97 A. D. 228. Robertson, Rebecca New York 1888, Dec. 31 Hovey v. Chisholm, 56 Hun, E. 328. Rosenfield, Joseph New York 1883, June 4 N. Y. Security, etc., Co. v. Schoenberg, 87 A. D. 262. Ruden, Jaques New York 1806, Oct. 6 Nodine v. Greenfield, 7 Paige, 544. Runyon, Charles New York 1904, Feb. 17 Runyon v. Grubb, 119 A. D. 17. Salisbury, Henry New York 1902, Dec. 10 Salisbury v. Ryon, 105 A. E. D. 445. Samson, David New York 1866, Apr. 3 Kinnier v. Rogers, 42 N. Y. 531. Sarvent, Garret Rockland 1901, Sept. 5 Ayres v. Courvoisier, 101 A. D. 97. Schlotzer, Gather- Monroe 1912, Sept. 3 Hooek v. Welch, 155 A. D. ine 947. Schreiber, Henry New York 1889, June 19 Alkus v. Goettmann, 60 Hun, 470. Schwab, Frederick New York 1892, Sept. ■ 6 Adami v. Backer, 29 Mis&, 93; Adami v. Gercken, 164 A. D. 472. Secor, Mary A. New York 1894, Oct. 15 Smith v. Secor, 157 N. Y. 402. Sherwood, David New York 1843, Apr. 7 Schween v. Greenberg, 76 Hun, 354. Sims, Eliza T. New York 1890, Oct. 21 Wyeth v. Sorchan, 38 Misc. 173. Smith, Edwin H. New York 1908, Sept. 28 Boecher v. Smada Realty Co., 164 A. D. 837. Smith, Eliza T. New York 1886, Sept. 27 Hyatt v. Aguerro, 56 Super. 63. Smith, Hiram Rensselaer 1881, Mar. 18 Wiltsie v. Shaw, 100 N. Y. 191. Smith, James R. New York 1817, June 11 Conover v. Hofl'man, 11 Abb. Deo. 429; McPher- son V. Smith, 49 Hun, 254. Table op Wills Construed. Ixxxix Sommers, Elizah B. New York 1869, Jan. 2 Crittenden v. Faireliild, 41 N. Y. 289. Soper, Abraham New York 1873, Apr. 15 Marks v. Halligan, 61 A. D. 179. Soper, Alfred New York 1885, Oct. 6 Priessenger v. Sharp, 59 Super. 315. Spencer, Lorillard New York 1888, May 5 Lane v. Hustaoe, 154 A. D. 636. Staff, Michael Street v. Gordon, 41 A. D. 439. Stead, Mary Ann New York 1862, Apr. 14 Hebberd v. Lese, 107 A. D. 425. Stephan, Peter Queens 1903, Jan. 9 Stephan v. Butcher, 107 A. D. 617. Storm, Theodora New York 1901, Apr. 23 Guilbert v. Guilbert, 68 M. Misc. 405. Striegel, Catherine New York 1894, June 25 McGarry v. McMahon, 134 A. D. 607. Stuyvesant, Nich- New York 1833, Apr. 12 Salmon v. Stuyvesant, 16 olas W. Wend. 321; Root v. Stuy- vesant, 18 Wend. 257. Taber, Stephen Queens 1886, May 13 Taber v. Willetts, 1 A. D. 285. Taylor, George G. New York 1879, Mar. 26 Coogan v. Ockershausen, 55 Super. 286. Terry, Edmund Kings 1890, Mar 12 Brooks v. Terry, 14 Supp. 238. Than, Jennie Kings 1902, Apr. 7 Thall v. Dreyfus, 84 A. D. 569. Titus, Francis Kings 1836, Aug. 22 Taggart v. Murray, 53 N. Y. 233. Tonnele, John New York 1847, June 19 Matter of Bull, 45 Barb. 334. Tooker, Ellen Mead v. Mitchell, 17 N. Y. 210. Townsend, Charles Albany 1848, Jan. 18 Viele v. Keeler, 129 N. Y. D. 190. Turpin, William New York 1835, Mar. 12 Maurice v. Graham, 8 Paige, , 483. Van Siolen, Jacob Kings 1903, Feb. 26 Heiferman v. Soholder, 134 T. A. D. 579. Veeder, Myndert 1759 Vedder v. Evertson, 3 Paige, 281. Vix, John G. New York 1874, Feb. 16 Harris v. Strodl, 132 N. Y. 392. Wagstaff, Alfred Suffolk 1878, May 11 Smith v. Coffin, 34 Hun, 635. xc Table of Wills Constkued. Waid, Hugh Kings 1885, Nov. 5 Dana v. Jones, 91 A. D. 496. Wait, W. Howard Kings- 1886, Apr. 7 Wait v. Cerqua, 7 bupp. 110. Waldron, Cornelia New York 1879, Jan. 4 Waldron v. Sehlang, 47 Hun, 252. Walgrove, George New York 1893, Aug. Lazarri & Barton Co. v_ W. Walgrove, appeal book, p. 8, of Walgrove v. Doug- lass, 166 A. D. 901. Waydell, Wm. An- New York 1878, July 30 Goeriitz v. Malawista, 56 derson Hun, 120. Webel, Henry Ber- New York 1884, Jan. 9 Webel v. Kelly, 111 A. D. nard 521. Weeks, George W. Kings 1904, May 27 Weeks v. Frankel, 197 N. Y. 304.' Weeks, John New York 1781, Apr. 7 Summers v. Burtis,'4 Edw. 728. Weisenach, Chris- New York 1882, June 22 Franck v. Schmitt, 24 W. tian D. 371. Wells, Chandler J. Erie 1887, Mar. 22 Moot v. Business, etc., Assn., 157 N. Y. 201. Westphal, Paul New York 1907, Feb. 26 O'KeeflFe v. Westphal, 139 A. D. 79. White, John H. New York 1877, Mar. 21 White v. Kane, 51 Super. 295. Wood, Samuel New York 1878, Oct. 11 Matter of Wood, 62 Hun, 445. Wragg, George New York 1825, Feb. 26 Ferris v. Gibson, 4 Edw. 707. Youngs, George New York 1880, Jan. 24 Lindo v. Murray, 91 Hun, 335. TABLE OF LOCALITIES AFFECTED. Localities are given as they appear in the records. No attempt is made to correct them for changes in county lines, street numbering or other reasons. "North," "South," "East" and "West," as parts of street names, are disregarded in indexing. Numbered streets are arranged numerically, following named streets. A dash ( — ) means " side." FOREIGN. Colorado. Lake Co., California Mining Dist Selover v. Chaffee, 20 W. D. 115. Connecticut. Greenwich Taylor v. Chamberlain, 6 A. D. 38. Cuba. Puerto Principe Cuban P. Co. v. Rodriguez, 124 A. D. 363. Indiana. Grant Co., Marion Boon v. James, 21 A. D. 627. New Jersey. Bergen Co., Palisades Bend v. Ruckman, 17 W. D. 153. Burlington Co., W. Tuckerton, Burlington Av. Borgrosser v. Risch, 149 A. D. 248. Hudson Co., Arlington, N. — Midland Av., bet. Davis Av. and Forrest St Church v. Standard R. S. Co., 52 A. D. 407. Mercer Co., Trenton Myres v. De Mier, 4 Daly, 343. Mercer Co., Trenton Trenton P. Co. v. Title G. & T. Co., 176 N. Y. 65. Middlesex Co., Summer Hill.. Wood v. Chew, 13 How. Pr. 86. Monmouth Co., Raritan Northridge v. Moore, 118 N. Y. 421. Passaic Co., Paterson Roy v. Willink, 4 Sand. Ch. 525. Pennsylvania. McKean Co O'Beirne v. Allegheny, etc., R. R., 151 N. Y. 372. Rhode Island. Newport, N. — Ward Av Warren v. Hall, 41 Hun, 466. Tennessee. Bledsoe, Cumberland, Rhea and Roane Cos Booth v. Milliken, 127 A. D. 522. Roane Co., Cardiff Ewing v. Wightman, 167 N. Y. 107. (xci) xcii Table; of Localities Affected. NEW YORK STATE. Houghton Patent Linsey v. Ferguson, 3 Lans. 196. Albany Co. Albany Hatt v. Hagaman, 12 Misc. 171. Broadway, W. — , 26' 3" S. of Maiden La Viele v. Keeler, 129 N. Y. 190. Columbia St Dawson v. Parsons, 10 Misc. 428. Hurlbut St., # 36 Draper v. Montgomery, 108 A. D. 63. Lark & Spruce Sts., N. W. cor Cook V. Wright, 160 A. D. 64. MoCarty Av., S. — , bet. S. Pearl & Browne Sts Hun v. Bourdon, 57 A. D. 351. Spruce & Lark Sts., N. W. eor ■ Cook v. Wright, 160 A. D. 64. Washington St., S. — , bet. Allen & Magazine Sts Buel v. Southwick, 70 N. Y. 581. Bethelehem Jarvis v. Babcock, 5 Barb. 139. Cohoes, Lancaster St., Lot # 42 Di Chiro v. O'Byrne, 163 A. D. 109. AlLEGHANT CO. Almond Coray v. Matthewson, 7 Lans. 80. Galen, Lot # 56 Clute v. Robison, 2 Johns. 595. Hume Stewart v. Gillett, 79 Misc. 93. . Bronx Co., see New York Co. Bkoome Co. Binghamton Barlow v. Scott, 24 N. Y. 40. Murray St., W. — , 201' N. of Main St Johnson v. Ross, 160 A. D. 866. Lisle Fuller v. Hubbard, 6 Cow. 13. Cattaraugtts Co. Hinsdale Jones v. Gardner, 10 Johns. 266. Red House O'Beirne v. Allegheny etc. R. R., 151 N. Y. 372. Cattjga Co. Auburn, Grover's Rd Hudson v. Swift, 20 Johns, 24. William St., # is Albro v. Gowland, 98 A. D. 474. Genoa Pierce v. Tuttle, 53 Barb. 155 ; 57 N. Y. 636. Weedsport Smith v. Rogers, 42 Hun, 110. Chautatjqua Co. Fredonia Sage v. Ranney, 2 Wend. 532. Pomfret, E. — , Seymour St.. McArthur v. Weaver, 129 A. D. 743. Portland Camp v. Morse 5 Den. 161. Westfield McWhorter v. MeMahon, 10 Paige, 386. N. Portage St Dixon v. Rice, 16 Hun, 422. Table of Localities Affected. xciii Chbmtjng Co. Generally Higbie v. Westlake, 14 N. Y. 281. Blmira Everitt v. Conklin, 90 N. Y. 645. Columbia Co. Generally Croghan v. Livingston, 17 N. Y. 218. COBTLAND Co. Homer, Lot # 12 Folliard v. Wallace, 2 Johns. 395. Delaware Co. Moresville More v. Smedburgli, 8 Paige, 600. Tompkins Hoag v. Owen, 57 N. Y. 644. Dutchess Co. Amenia Mahaiwe Bank v. Culver, 30 N. Y. 313. Fishkill, E. — , Hudson E. . . . Kent v. Church of St. Michael, 136 N. Y. 10. Hyde Park Holmes v. Holmes, 12 Barb. 137. Pawling Swan ^!. Packer, 161 A. D. 511. Poughkeepsie Smith v. Wells, 69 N. Y. 600. Eedhook, Tivoli Freeborn v. Wagner, 4 Keyes, 27. Rhinebeck E. — , Hudson E.. Matter of Chanler, 59 A. D. 613. South Dover Blain v. Taylor, 19 Abb. Pr.' 228. Washington Wilson v. White, 109 N. Y. 59. Fou'r Corners Ketchum v. Evertson, 13 Johns. 359. Ebie Co. Alden Martin v. Colby, 42 Hun, I. Buffalo, Main & Hamburg Canal Pryor v. BuflFalo, 197 N. Y. 123. Carroll St., S. — , 160' E. of Washington St O'Toole v. O'Toole, 39 A. D. 302. Church & Pearl Sts., N. E. cor Matter of First Presbyterian Soc, 106 N. Y. 251. Emslie & Swan Sts., N. W. cor Neber v. Hatch, 10 Abb. N. C. 431. Englewood Av. & Nicholson Av., S. W. cor Weinheimer v. Ross, 205 N". Y. 518; 214 N. Y. 630. Ferry St., S. — , 2277' W. of Delaware Av Rankin v. Clement, 194 N. Y. 535. Grant St., W. — . 168' S. of Bird Av Glawatz v. People's G. S. Co., 49 A. D. 465. Linwood. Av., # 122 Shire v. Plimpton, 50 A. D. 117. Main St., E. — , 240' 8" S. of Tupper St Moot v. Business M. I. Assn., 157 N. Y. 201. Main St., W. — Hersee v. Simpson, 154 N. Y. 496. xciT Table of Localities Affected. Erie Co. — Continued. Main St., W. — , bet. Mo- hawk & Court Sts Koons v. Potter, 105 A. D. 622. Prospect k Massachusetts Avs., N. E. cor Hellreigel v. Manning, 97 N. Y. 56. Riley St., 300' E. of Hum- boldt Pkwy Forsyth v. Leslie, 74 A. D. 517. Walden Av. & Williamsville Rd., S. W. cor Doll v. Ingram, 8 S. R. 253. Cheektowaga Kneller v. Lang, 137 N. Y. 589. Hamburg Spaulding v. Fierle, 86 Hun, 17. Lancaster Hume v. Randall, 141 N. Y. 499. N. — , Batavia Rd Williams v. Colwell, 14 A. D. 26. Tonawanda Eiseman v. Joaephthall, 71 Misc. 288. Tonawanda Glenn v. Rossler, 156 N Y. 161. West Seneca Goetz v. Ballou, 64 Hun, 490. Essex Co. Westport Eddy v. Davis, 116 isT. Y. 247. Willsborough Hinckley v. Smith, 51 N. Y. 21. Fulton Co. Stratford, Glen Bleecker & Lansing's Patent Lot # 82. BrinckerhoflF v. Phelps, 24 Barb. 100. Genesee Co. Griswold's Station Ranger v. Yates, 207 N. Y. 698. Greene Co. • Generally Osgood v. Franklin, 2 Johns Ch. 1. Generally Squires v. Peck, 14 W. D. 564. Lexington, Hardenburgh Pat- ent; Great Lot # 34, Lots 9 & 10 in # 20 Voorhees v. De Meyer, 2 Barb. 37. Hamilton Co. Generally Carman v. Pultz, 21 N. Y. 547. Totten & Crossfield's Purchase, Township 22, N. W. Quarter Turner v. Walker, 40 Misc. 379. Herkimer Co. Wilmount Lighthall v. McGuire, 20 A. D. 248. Jefferson Co. Generally Ogden v. Smith, 2 Paige, 195. Watertown Caswell v. Black R. C. & W. Mfg. Co., 14 Johns. 453. Watertown Merchants' Bank v. Thomson, 55 N. Y. 7. Kings Co. Barren Is Bergen v. Wyckoff, 1 Civ. Proc. 1. Bushwick. generally Matter of Browning, 2 Paige, 64. Brooklyn (and see street names below). Evergreens Cemetery Matter of Evergreens, 47 N. Y. 216. Table of Localities Affected. xcv Kings Co. — Continued. Ft. Hamilton, sectional map # I, lots # 1-6 Burke v. Kaltenbaoh, 135 A. D. 261. Greenwood Cemetery ileiggs v. Hoagland, 68 A. D. 182. Leflfert Lefferts Eat., lots # 1332-1389 Brevoort v. Brevoort, 115 N. Y. 656. Post Farm Leggett v. Hunter, 19 N. Y. 445. Ward 9, tax map, Bl. 38, lots # 30-31 Hobbs v. Scott, 122 A. D. 399. Flatlands, generally Wanser v. De Nyse, 188 N. Y. 37S. New Lots, generally Easton v. Pickersgill, 55 N. Y. 310.. New Lots, generally Lang v. Kiendl, 27 Hun, 66. New Lots, generally Simon v. Vanderveer, 155 N. Y. 377- Williamsburgh, generally Withers v. Morrell, 3 Edw. 560. Generally Withers v. Codwise, 2 Sand. Ch, 350 n. Adelphi St., # 102 Burnham v. Denike, 54 A. D. 628. Albany Av. & CaiTolI St., N. W. cor Tietjen v. Palmer, 121 A. D. 233. Amity St., # 170 O'Keilly v. Piatt, 80 A. D. 348. Arlington Av., # 104 Gay v. Ulrichs, 136 A. D. 809. Atlantic Av., #991 Lenihan v. Ward, 119 A. D. 870. & Nichols Av., N. E. cor.. New Lots Spencer v. Merchant, 100 N. Y. 585. Baltic St., # 114. . . , Eastman v. Home, 141 A. D. 12. # 375 Reynolds v. Wynne, 121 A. D. 272. S. — , 200' W. of Bond St.. Kerrigan v. Force, 68 N. Y. 381. Bay 13th St. & Benson Av., S. W. cor Ebert v. Hanneman, 69 Misc. 223. Beaver St., # 62 Bloomgarden v. Hoffmann, 112 A. D. 887. Bedford Av., # 872 Ames v. Danzilo, 158 A. D. 232. Bedford Av., E. — , bet. Hal- sey & Monroe Sts Brevoort v. Grace, 53 N. Y. 245. Benson Av. & Bay 1 3th St., S. W. cor Ebert v. Hanneman, 69 Misc. 223. Bergen St., S. — , 424' 6" W. of Rockaway Av. . . .- Rosenblum v. Eisenberg, 123 A. D. 896. Berry St. & N. 6th St., N. cor. Gorman v. Gorman, 40 A. D. 225. Bridge St., W. — , 73' 9" S. of High St Sproule v. Davies, 171 N. Y. 277. Bristol St., E. — , 150' S. of Sackett St., East N. Y Kennedy v. Lamb, 182 N. Y. 228. Broadway, # 124 Graham v. Ackerly, 120 A. D, 430. cor. Varet St Timmermann v. Cohn, 204 N. Y. 614. E. — , 60' N. of William St Oakley v. Briggs, 17 Supp. 751. xcvi Table of Localities Affected. Kings Co. — Continued. S. W. — , 265' 4" W. of Ellery St Schult v. Moll, 132 N. Y. 122. Butler St., N. — , 213' 4" W. of Eochester Av Dingley v. Bon, 130 N. Y. 607. Carnarsie Rd. & Noatrand Av., N. E. cor Huber v. Case, 93 A. D. 479. & Old Rd., N. E. cor Boehmcke v. McKeon, 119 A. D. 30. Carroll St Kelly v. Pitcher, 4 Supp. 3. & Albany Av., N. W. cor... Tietjen v. Palmer, 121 A. D. 233. N. — , 167' 6" W. of 7th Av. Lyon v. Lyon, 67 N. Y. 250. Chauneey St., N. — , 310' E. of \'\ Stuyvesant Av Clement v. Burtis, 121 N. Y. 708. Chester St., # 95 Weinstein v. Kratenstein, 150 A. D. 789; Richter v. Kratenstein, Clay St., N. — , 150' E. of 163 A. D. 868. Manhattan Av McLaughlin v. McCann, 123 A. D. Clifford PI. & Meserole Av., N. 67. W. cor Lauder v. Meserole, 148 A. D. 738. Clifton PI., N. — , 117' 4" E. of Grand Av..' . . Andrews v. O'Mahoney, 112 N. Y. 567. Clinton Av., # 416 Goodrich v. Pratt, 114 A. D. 771. Coney Is. Av. & S.eeley St., N. W. cor Heasty v. Lambert, 98 A. D. 177. Cook St., # 53 Price v. Pestka, 54 A. D. 59. Court Sq. & Fulton St., S. E. cor Webster v. Kings C. T. Co., 145 N. Y. 275. ■' Court St., # 558 Block v. Braun, 116 A. D. 923. Cumberland St., E. — , 268' 7" S. of Fulton Av Goodrich v. Russell, 42 N. Y. 177. Dean St., # 755-757 Nolan v. Earned, 13 A. D. 155. & Smith St., S. E. cor Ouvrier v. Mahon, 117 A. D. 749. Debevoise St., # 134 Caminez v. Goodman, 119 A. D. 484. Decatur St Gross v. Rowley, 147 A. D. 529. Degraw St., S. — . 200' E. of Underbill Av Brooklyn v. Copeland, 106 N. Y. 496. De Kalb Av Darrow v. Horton, 6 S. R. 718. & Grand Av., S. W. cor Rosenberg v. Haggerty, 189 N. Y. Dodworth St., N. W. — , 95' 481. 8%" N. E. of Broadway. . . Scboenewald v. Rosenstein, 5 Supp. 766. Douglass St., # 43 Freeman v. Ahearn, 64 A. D. 509. Dwight St., E. — , bet. Wil- liam & Bush Sts Gotthelf v. Stranahan, 138 N. Y. 345. Table of Localities Affected. xcvii Kings Co. — Continued. Eastern Parkway, N. — , 129' E. of Schenectady Av Camardella v. Schwartz, 126 A. D. 334. S. — , 142' 10" E. of Buffalo Av Belmont, etc., Co. v. Serial, etc., Inst., 167 A. D. 124. Eldert St., N. — , 100' E. of Broadway Ledoux v. Samuels, 116 A. D. 726. EUery St., # 122 Berger v. Renz, 127 A. D. 923. Elm St., S., — , 165' 9" W. of Central Av Kelly v. Brower, 42 S. R. 758. S. — r 325' B. of Hamburg Av Bowler v. Ennis, 46 A. D. 309. Essex St., W. — , 200' S. of Sutter St Krasnow v. Topp, 128 A. D. 156. Everett & Fulton Sts., cor ... . Seaman v. Hicks, 8 Paige, 655. Flatbush Av., E. — Brooklyn Park Commrs. v. Arm- strong, 3 Lans. 429. Flushing Av., S. E. — , bet. Wyckoff & St. Nicholas Avs. Schaefer v. Hilliker, 140 A. D. 173. Franklin Av., # 333-23a% . . . Sweet v. Schliemann, 95 A. D. 266. Fulton Av. & Howard Av., N. W. cor Parkinson v. Jaeobson, 18 Hun, 353. Fulton St., # 247 Moore v. Williams, 115 N. Y. 586. & Court Sq., S. E. cor.. ..'. Webster v. Kings C. T. Co., 145 N. Y. 275. & Everett St., cor. Seaman v. Hicks, 8 Paige, 655. N. — , 390' 8" E. of Bond St. O'Flynn v. Powers, 136 N. Y. 412. Gates Av., N. — , bet. Throop & Tompkins Avs, Adair v. Adair, 74 N. Y. 622. Graham St. & Kent Av., 287' 8" N. of De Kalb Av Wheeler v. Clutterbuck, 52 N. Y. 67. Grand Av. & De Kalb Av., S. W. cor Rosenberg v. Haggerty, 189 N. Y. 481. Grand St., # 53 & 175, Wil- liamsburgh Monarque v. Monarque, 80 N". Y. 320. Greene Av., # 708 Schwartz v. Rehfuss, 129 A. D. 630. N. — , 475' E. of Lewis Av.. Dodd v. Neilson, 90 N. Y. 243. Halsey St., N. — , bet. Bed- ford & Stuyvesant Avs.. Brevoort v. Grace, 53 N. Y. 245. S. — ^ 116.2' W. of Broad- way Woerz V. Rademacher, 120 N. Y. 62. Hamilton Av., 176' 9V2" N- of 2d Av Abbott v. Curran, 98 N. Y. 665. xcviii ' Table of Localities Affected. Kings Co. — Continued. Hancock St., # 292 Woodhull v. Little, 102 N. Y. 165. Hart St., N. — , 40' B. of Nostrand Av Greenland v. Waddell, 116 N. Y. 234. Henry St. & Summit St., N. W. cor Wait v. Cerqua, 7 Supp. 110. Herkimer St. & Ralph Av., S. E. cor Brown v. Mount, 38 A. D. 440. Hewes St., # 125-129 Rice v. Barrett, 99 N. Y. 403. # 226 Matter of Bridgeport Brass Co., 77 Misc. 69. Hinsdale St. & Pitkin Av., S. W. cor Samuelson v. Glickman, 113 A. D. 654. Hooper St., # 130 Weeks v. Frankel, 197 N. Y. 304. Howard Av. & Fulton Av., N. W. cor Parkinson y. Jacobson, 18 Hun, 353. W. — , bet. St. John's PI. & Eastern Parkway Exten- sion Builders Mtge. Co. v. Berkowitz, 134 A. D. 136. Hudson Av., W. — , 88' 3" S. of Concord St Cornell v. WoodruflF, 77 N. Y. 203. Humboldt St Wood v. Squires, I Hun, 481. & McKibben St., N. E. cor, Frank v. Frank, 123 A. D. 802. Jefferson Av., N. — , 300' E. of Nostrand Av Downey v. Seib, 185 Ki Y. 427. Jefferson St., N. — , bet. Bed- ford & Nostrand Avs Brevoort v. Brevoort, 70 N. Y. 136. N. — , 300' E. of Knicker- bocker Av Groden v. Jacobson, 129 A. D. 508. Johnson St., N. — ; bet. Fulton & Washington Sts Waring v. Waring, 7 Abb. Pr. 472. S. — , 268' E. of Bushwick Av Levy v. Newman, 130 N. Y. 11. K Av., Kenwood McDougall v. Schneider, 134 A. D. 208. Kane PI Warner v. Will, 5 Misc. 329. Kent Av. & Graham St., 287' Wheeler v. Clutterbuck, 52 N. Y. 8" N. of De Kalb Av 67. Kosciusko St. & Marcy Av., S. W. cor Alpern v. Farrell, 133 A. D. 278. L Av., Kenwood McDougall v. Schneider, 134 A. D. ^ 208. Lafayette Av., N. — , 166' 8" E. of Nostrand Av Mason v. Scott, 50 A. D. 463. Table of Localities Affected. xcix Kings Co. — Continued. Lincoln P1.,,S. — , 276' 1" W. of Nostrand Av Dixon v. Cozine, 64 Misc. 602. Livingston St., S. W. — , 134' II" S. E. of Smith St Doremus v. Doremus, 66 Hun, 111. M Av., Kenwood McDougall v. Schneider, 134 A. D. 208. Marcy Av. & Kosciusko St., S. W. cor Alpern v. Farrell, 133 A. D. 278. Marion St., N. W. — , 249' S. E. of Saratoga Av Rosenberg v. Feiering, 121 A. D. 190. Manjer St., # 134-136 Woodenbury v. Spier, 122 A. D. 396. McDonough St., 40' W. of Sumner Av Mott v. Clayton, 9 A. D. 181. McDougal St., S. — , 40' W. of Stone Av College P. S. Bk. v. Vollmer, 44 A. D. 619 McKibben St. & Humboldt St., N. E. cor Frank v. Frank, 123 A. D. 802. Meserole Av. & Clifford PI., N. W. cor Lauder v. Meserole, 148 A. D. 738. Monroe St., # 774y2 People v. Knickerbocker L. I. Co., 66 How. Pr. 115. S. — , bet. Stuyvesant & Bedford Avs '. Brevoort v. Grace, 53 N. Y. 245. Montgomery St., S. — , 472' 8%" E. of Albany Av Title G. &. T. Co. v. Fallon, 101 A. D. 187 Myrtle Av., # 897-899 Kaplan v. Bergmann, 122 A. D. 876. S. — , 42' 6" W. of Prince _ St Koepke v. Bradley, 3 A. D. 391. N Av., Flatlands Wanser v. De Nyse, 125 A. D. 209. Nassau St., S. — , 100' E. of Gold St Harrigan v. Golden, 41 A. D. 423. New Jersey Av., W. — , 95' S. of Eiverdale Av Gerzog D. C. Co. v. Levin, 124 A. D. 904.' New York Av. & Tilden Av., S. W. cor Hill V. Flatbush C. I. Co., 143 A. D. 559. Nichols Av. & Atlantic Av., N. E. cor., New Lots Spencer v. Merchant, 100 N. Y. 585. Nostrand Av. & Carnarsie Ed., N. E. cor . Huber v. Case, 93 A. D. 479. Oakland St., # 36 & 40 Heiberger v. Karflol, 202 N. Y. 419. #79 Gallagher v. Quinlan, 10 A. D. 402. Ocean Av., Kenwood McDougall v. Schneider, 134 A. D. 208. Table of Localities Affected. Kings Co. — Continued. Old Ed. & Carnarsie Ed., N. E. cor Boehmcke v. M'eKeon, 119 A. D. 30. Pacific St., # 2079 Eose v. Adler, 165 A. D. 921. N. — , 42' 1014" E. of 6th Av Prentiss v. Cornell, 31 Hun, 167. Park Av. & Schenck St., N. E. cor Doody v. Hollwedel, 22 A. D. 456. S. — , bet. Eaymond & St. Edwards Sts City, etc., Co. v. People, 157 A. D. 459. Pineapple St., # 71 Floeting v. Horowitz, 120 A. D. 492. Pitkin Av. & Hinsdale St., S. W. cor Samuelson v. Glickman, 113 A. D. 654. President St., S. — , 92' E. of Henry St Baucher v. Stewart, 136 A. D. 844. Prospect Av. & 10th Av., N. E. cor Close v. W.' M. Calder Co., 139 A. D. 175. Putnam Av., # 731 Odell v. Claussen, 120 A. D. 535. :j^ 1290 Veit v. Schwob, 127 A. D. 171. N. _^ 300' E. of Broadway. Plaut v. Moores, 142 N. Y. 646. Q Av. & W. 7th St., S. W. cor. Eyclesheimer v. Hunter, 162 A. D. 643. Quincy St., N. — , 350' E. of Classon Av Street v. Gordon, 41 A. D. 439. S. — , bet. Tompkins & Throop Avs Adair v. Adair, 74 N. Y. 622. Ealph Av. & Herkimer St., S. E. cor Brown v. Mount, 38 A. D. 440. Eaymond St,, E. — , bet. Park Av. & Tillary St City, etc., Co. v. People, 157 A. D. 459. Eemsen St., # 162 Farrar v. MeCue, 89 N. Y. 139. Richmond St., W. — , 133' 9" S. of Fulton St German-Am. R. E. T. G. Co. v. Mey- ers, 32 A. D. 41. Eockaway Av., E. — , 20' S. of St. Mark's Av Von Hatten v. Scholl, 1 A. D. 32. Eoss St., near Bedford Av. . . . Ingersoll v. Mangam, 84 N. Y. 622. Eutledge St., # 193 Matter of Bridgeport Brass Co., 77 Misc. 69. S. — , 220' W. of Marcy Av Union D. S. Inst. v. Anderson, 83 N. Y. 174. Table of Localities Affected. ci Kings Co. — Continued. St. Edwards St., W. — , bet. Park Av. & Tillary St City, etc.; Co. v. People, 157 A. D. 459. St. Mark's Av., # 485 Lynch v. Rogers, 150 A. D. 311. St. Mark's PI., S. — , 288' 9" E. of Vanderbilt Av Gignoux v. Stafford, 42 Hun, 426. Saratoga Av., # 334 Greenspan v. SalSdino, 126 A. D. 331. Schenck St. & Park Av., N. E. cor Doody v. Holhvedel, 22 A. D. 456. Senator St., N. — , bet. 3d & 4th Avs Green-Shrier Co. v. State K. & M. Co., 129 A. D. 581. Seeley St. & Coney Is. Av., N. W. cor Heasty v. Lambert, 98 A. D. 177. Silliman PI., N. E. — . 159' 7" N. W. of 3d Av Monroe v. Musiea, 166 A. D. 929. Smith St. & Dean St., S. E. cor Ouvrier v. Mahon, 117 A. D. 749. W. — . 20' 9" S. of Nelson St Dana v. Jones, 91 A. D. 496. Snyder Av Bradley v. Krudop, 128 A. D. 200. Somers St., # 27-31 Hald v. Claffy, 131 A. D. 251. Stone Av., E. — , 200' S. of Newport Av People's T. Co. v. Tonkonogy, 144 A. D. 333. Strong PI., # 23 English v. Ripley, 24. W. D. 153. Stuyvesant Av., W. — , bet. Monroe & Halsey Sts Brevoort v. Grace, 53 N. Y. 245. Summit St. & Henry St., N. W. cor Wait v. Cerqua, 7 Supp. 110. Sutter Av. & Thatford Av., S. E. cor.. New Lots Scripture v. Morris, 38 A. D. 377. Thatford Av., # 243 Messer v. Aaron, 101 A. D. 169. & Sutter Av., S. E. cor., New Lots Scripture v. Morris, 38 A. D. 377. Throop Av., # 89. ., Klim v. Sachs, 102 A. D. 44. W. — , bet. Quincy St. & Gates Av Adair v. Adair, 74 N. Y. 622. Tilden Av. & New York Av., S. W. cor Hill V Flatbush C. I. Co., 143 N. Y. • 559. Tillary St., N. — , bet. Ray- mond & St. Edwards Sts... City, etc., Co. v. People, 157 A. D. 459. Tompkins Av., E. — , bet. Quincy St. & Gates -Av Adair v. Adair, 74 N. Y. 622. cii Table of Localities Affected. Kings Co. — Continued. Underbill Av., W. — , 31' S. of Park PI Seitz v. Grovea, 99 A. D. 629. Union Av., E. — , 25' S. of Bayard St Miele v. Deperino, 4 Silv. C. A. 611. Union St., bet. 7th & 8th Avs. Crocker v. Gollner, 20 Supp. 17. Utica Av., E. — Clark v. Sprague, No. 2, 113 A. D. 645. Van Brunt St., S. E. — Partenf elder v. People, 211 N. Y. 355. Van Siclen Av., # 537 Heiferman v. Scholder, 134 A. D. 579. Van Siclen St., E. — , 255' 5" S. of Kings Highway, Gravesend . ^ Matter of Fales, 33 A. D. 611. Varet St. & Broadway, cor. . . Timmermann v. Cohn, 204 N. Y. 614. Walworth St., E. — , 390' S. of Willoughby Av Abbott v. James, 111 N. Y. 673. Water St., S. — , 220' W. of Bridge St Kerns v. Davenport, 201 N. Y. 583. Whipple St., # 29 Tyler v. Seller, 76 Misc. 185. Willoughby Av., # 1012 Eaben v. Risnikoff, 95 A. D. 68. Wortman Av Shepman M. & R.' Cpn. v. Sussman, 147 A. D. 25. York St., # 185 Franklin v. Di Clementi, 123 A. D. 664. 1st Av., W. — , 230' N. of 92d St Kent V. Shepard, 115 A. D. 64. 1st St., B. — Taggart v. Murray, 53 N. Y. 233. N. 1st St., S. — , 85' 1" W. of 2d St Waite v. Simons, 121 N. Y. 712. 2d PI., # 128 Rice v. Barrett, 99 N. Y. 403. 2d St., W. — , bet. N. 8th & N. 9th Sts Jenkins v. Fahey, 73 N. Y. 355. 3d St., S. — , lie W. of 7th \ Av Ladd v. Title G. & T. Co., 188 N. Y. 616. 4th Av., # 125 Ehmer v. Title G. & T. Co., 156 N. Y. 10. # 668 Seidenburg v. Pesce, 1^0 A. D. 232. 4th St., # 19 Stokes v. Johnson, 57 N. Y. 673. :fj: 37-43 Arion E. Co. v. Schmidt, 119 A. D. 872. 5th Av., # 104 Thall v. Dreyfusa, 84 A. D. 569. # 106 Sisco V. Martin, 61 A. D. 502. # 440 Heymann v. Steieh, 134 A. D. 176. 5th St., # 203-205, Williams- burgh Jlonarque v. Monarque, 80 N. Y. 320. N. 6th St. & Berry St., N. cor. Gorman v. Gorman, 40 A. D. 225. Table of Localities Affected. ciii Kings Co. — Continued. 7th Av., N W. — , bet. Lincoln & Berkeley Pis Stevenson v. Fox, 40 A. D. 354. W. — , bet. Warehouse Av. & 106th St Dyker M. L. & I. Co. v. Cook, 159 N. Y. 6. 7th St., S. — , 122' IOV2" E. of 6th Av Reilly v. Hart, 130 N. Y. 626. W. 7th St. & Av. Q, S. W. cor. Eyclesheimer v. Hunter, 162 A. b. 643. 8th St. S. — , 195' 9" E. of 4th Av .' Drlscoll v. Carroll, 127 A. D. 265. W. 9th St., N. — . 408' 4" W. of Court St Kelly v. Kelly, 72 A. D. 487. 10th Av. & Prospect Av., N. E. cor Close v. W. M. Calder Co., 139 A. D. 175. 10th St., N. — , 278' 3" W. of 5th Av Parker v. Beer, 173 N. Y. 332. 13th Av. & 42d St., N. E. cor. Eothbard v. Abels G. R. Co., 128 A. D. 887. & 46th St., E. cor Koechl v. Gate D. Co., 149 A. D. 239. 13th St., N. E. — Leggett v. Firth, 132 N. Y. 7. 14th St., S. W. — , 517' 10y2" N.W. of 4th Av Egelhoff v. Simpson, 50 A. D. 595. E. 18th, 19th, 21st, 22d Sts., Kenvyood ■ McDougall v. Schneider, 134 A. D. 208. 22d St., # 152 Tureo v. Trimboli, 152 A. D. 431. W. 25th St., W. — , 230' S. of Neptune Av Meserole v. Williams, 153 A. D. 306. W. 32d St., W. — , 160' S. of Neptune Av Mullins v. Franz, 162 A. D. 316. W. 33d St., E. — . 180' S. of Neptune Av Mullins v. Franz, 162 A. D. 316. W. 36th St., W. — , 150' N. of Mermaid Av Lafayette Trust Co. v. Beggs, 213 N. Y. 280. 42d St. & 13th Av., N. E. cor. Eothbard v. Abels G. R. Co., 128 A. ». 887.' 46th St. & 13th Av., E. cor.. . Koechl v. Gate D. Co., 149 A. D. 239. 48th St., # 234 Guli v. West, 19 Supp. 757. 57th St., N. — , 380 W. of 16th Av Von Glahn v. Heins, 128 A. D. 167. E. 108th St., S. — , bet. Avs. F & G Hochstein v. Vanderveer Crossings, # 1, 150 A. D. 118. civ Table of Localities Affected. Kings Co. — Continued. E. I08th St., S. — , bet. At. G &, Flatland At Hochstein t. VanderTeer Crossings, Lewis Co. # 2, 150 A. D. 121. Watson Bostwick t. Beach, 103 N. Y. 414. LiTINGSTON Co. LiTonia Northrup t. Gibbs, 28 W. D. 505. Mt. Morris Brinkerhoflf t. Dip, 35 Barb. 27. Nunda People t. Globe M. L. I. Co., 33 Hun, 393. Portage Brinkerhoff v. Dip, 35 Barb. 27. Madison Co. Generally James v. Hubbard, 1 Paige, 228. Georgetown Fletcher t. Button, 4 N. Y. 396. MONEOE Co. Greece, Driving Park At Kondolf t. Britton, 160 A. D. 381. Mendon Stone v. Lord, 80 N. Y. 60. Pittsford Vought v. Williams, 120 N. Y. 253. Pittsford People ex rel. Smith v. Sohmer, 163 A. D. 830. Rochester Griffith v. Kempshall, Clarke, 571. Rochester Stewart v. Hamilton, 37 Hun, 19. Rochester Emens t. St. John, 79 Hun, 99. Elwood Bldg Elwood v. Goldman, 158 A. D. 805. 'Andrews & Clinton Sts., cor. Bunomo v. Schlitzer, 198 !N. Y. 584. Andrews & Franklin Sts., S. W. cor Werner t. Noeth, 161 A. D. 911. Exchange & Violetta Sts., S. W. cor Hoock t. Welch, 155 A. D. 947. Rochesterville Robb v. Montgomery, 20 Johns. 15. Montgomery Co. Canajoharie, Young's Patent. Osgood v. Franklin, 2 Johns. Ch. 1. Charlestown, Corry's Patent, Lot # 19, farm # 15 Clarke v. Hughes, 13 Barb. 147. Nassau Co. Hempstead Tpk., S. — , W. of Lynbrook Rd Sheindelman v. Colyer, 122 A. D. 379. Oyster Bay Matter of Townsend, 203 N. Y. 522. DiTision At., W. — Witte t. Koerner, 123 A. D. 824. GreenTale Scudder t. Watt, 98 A. D. 228. Oyster Bay Cove Sewell v. Underhill, 197 N. Y. 168. Rockville Centre, Banks Av., W. — MoCarten v. Smith, 163 A. D. 900. Front St. & Village At., N. E. cor Kouwenhoven v. Gifford, 143 A. D. 913. Table of Localities Affected. cv Nassau Co. — Continued. Marion Pk Epstein v. Rocl. 339. # 2205 Piatt V. Finck, 60 A. D. 312. & 16th St., S. E. cor Parish v. Parish, 175 N. Y. 181. & 32d St., cor Rigney v. Coles, 6 Bosw. 479. & 38th St., N. E. cor Corbin v. Baker, 167 N. Y. 128. & 59th St., cor King v. Piatt, 37 N. Y. 155. & 87th St., S. E. cor Phillips v. Schiflfer, 64 Barb. 548. & 112th St., cor Ludlow i . Van Ness, 8 Bosw. 178. bet. 54th & 55th Sts Berenbroiek v. St. Luke's Hospital, 23 A. D. 339. cxviii Table of Localities Affected. New York Co. — Continued. E. — , 75' 11" N. of 96th St Willis V. Dawson, 34 Hun, 492. W. — , 50' 5" N. of 114th St ■ Seligman v. Sonneborn, 1 How. N. S. 465. 5th St., N. — , bet. Ava. C & D Bennett v. Mayor, 1 Sandf. 485. 6th Av. & Waverly PL, cor. . . . Jennings v. Jennings, 2 Abb. Pr. 6. & 17th St., S. W. cor Beyer v. Marks, 2 Sweeny, 715. & 51st, N. "W. cor Kerr v. MeAneny, 17 W. D. 102. & 53d St., S. E. cor Doyle v. John E. 0. K. Co., 132 A. D. 200. & 125th St., S. E. cor Argall v. Raynor, 20 Hun, 267. E. — , 49' 11" N. of 139th St Scholle V. Scholle, 113 N. Y. 261. W. — , 75' 5" S. of 44th St. Matter of Coogan, 177 N. Y. 376. 6th St., # 202 Towle f. E. cor Holly v. Hirsch, 135 N. Y. 590. & 8th Av., S. W. cor Steinhardt v. Cunningham, 130 N. Y. 292. 120th St., E., # 69 MoGuekin v. Milbank, 152 N. Y. 297. 121st St., E., # 242 Macdonald v. Bach, 51 A. D. 549. 122d St., W., # 117 Baeot v. Fessenden, 130 A. D. 819. E., # 160 Duchardt v. Cassidy, 70 A. D. 102. & Claremont Av., S. W. cor. Post v. Weil, 115 N. Y. 361. 123d St., S. — , 155' W. of 2d Av Irving v. Campbell, 121 N. Y. 353. 124th St., W Brown v. Genet, 63 How. Pr. 236. & 4th Av., S. W. cor Muhlker v. Ruppert, 124 N. Y. 627. N. — , 112' 8" W. of 1st Av. Bayer v. Phillips, 17 Abb. N". C. 425. 125th St. & 6th Av., S. E. cor. Argall v. Eaynor, 20 Hun, 267. N. — , 165' W. of 4th Av.. . Valentine v. Belden, 20 Hun, 537. N. — , 185' E. of 6th Av.. . . Marks v. Halligan, 61 A. D. 179. 126th St Daly v. Burohell, 13 Abb. Pr. N. S. 364. & 9th Av., S. W. cor Lynch v. Pfeiffer, 110 N. Y. 33. N. — , 250' W. of 6th Av. . . MeCahill v. Hamilton, 20 Hun, 388. S. — , 150' W. of Amsterdam Av Potter v. Boyce, 73 A. D. 383. S. — , 135' E. of 3d Av Weintraub v. Siegel, 133 A. D. 677. 127th St., E., # 160-162 Hebberd v. Lese, 107 A. D. 425. N. — , 291' 8" W. of 6th Av. Hutchinson v. Chapman, 112 N. Y. 675. 128th St., W., # 52 Haendle v. Stewart, 84 A. D. 274. E., # 70-74 Evangelical L. Church v. Rabell, 141 A. D. 925. 129th St., S. — , 460' W. of 5th Av Janpole v. Lasky, 94 A, D. 353. 130th St., W., # 517 Occidental R. Co. v. Palmer, 117 A. D. 505. N. — , 125' E. of 8th Av.. . . Davidson v. Jones, 112 A. D. 254. 132d St., N. — , bet. Willis Av. & Brown PI Tax Lien Co. v. Schultze, 213 N_ Y. 9. 133d St., W., # 16 Coleman v. Bruch, 132 A. D. 716. W., # 69 Lese v. Lawson, 118 A. D. 254. Table of Localities Affected. cxxix New York Co. — Continued. W., # 138 Blanck v. Sadlier, 153 N. Y. 551. &. 8th Av., N. E. cor SehifiFer v. Pruden, 64 N. Y. 47. 134th St., N. — , 166' W. of 7th Av Wright T. Mayer, 47 A. D. 604. S. — , 250' W. of 8th Av.. . . Styles v. Blume, 12 Misc. 421. 135th St. & 4th Av., S. W. oor. Ryerson v. Willis, 81 N. Y. 277. 136th St., E Livingston v. Spero, 18 Misc. 243. & 10th Av., N. E. cor Mutual L. I. Co. v. Woods, 121 N. Y. 302. 137th St. & Hudson River Felix v. Devlin, 90 A. D. 103. N. — , 275' E. of 6th Av. . . MoKenna v. Duffy, 64 Hun, 597. 138th St. & Boulevard, S. W. oor Scholle v. Scholle, 101 N. Y. 167. 139th St. & Cypress Av., S. W. cor Feist v. Block, 115 A. D. 211. N. — , 575' E. of Lenox Av. Kidansky v. Peltyn, 118 A. D. 906. 140th St., S. — , bet. 5th & 6th Av3 Scholle v. Scholle, 113 N. Y. 261. 142d St. & 8th Av., N. E. cor. Brown v. Beckmann, 53 A. D. 257. 143d St., S. — , 250' E. of 8th Av Raynor v. Selmes, 52 N. Y. 579 ; Raynor v. Lyon, 46 Hun, 227. S. — . 500' W. of 11th Av.. Dunshee v. Goldbacher, 56 Barb. 579. 144th St. & 7th Av., S. W. cor. Reed v. Reed, 107 N. Y. 545. 145th St., S. — , 153' E. of Brook Av Paolillo v. Faber, 56 A. D. 241. 146th St. & Boulevard, S. E. cor Uhl V. Loughran, 16 Civ. Proc. 386. N. — , 275' W. of 11th Av.. Priessenger v. Sharp, 59 Super. 315. 147th St., N. — , bet. Lenox Av. & Exterior St Interborough R. T. Co. v. Littlefield, 166 A. D. 567. 148th St. & Cortlandt Av., S. W. cor Nicklas v. Keller, 9 A. D. 216. S. — , bet. Lenox Av. & Ex- terior St Interborough R. T. Co. v. Littlefield, 166 A. D. 567. & 8th Av., N. E. cor Wilmurt v. MeGrane, 16 A. D. 412. 149th St. & Boulevard, N. E. cor Scholle v. Scholle, 101 N. Y. 167. & St. Nicholas Av Broadbelt v. Loew, 15 A. D. 343. N. — , 300' E. of Boulevard. Scholle v. Scholle, 101 N. Y. 167. 150th St. & Courtlandt Av., N. E, cor Hemmer v. Hustace, 51 Hun, 457. 151st St., E., # 657-659 Seitz v. Messerschmitt, 117 A. D. 401. • I cxxx Table of Localities Affected. New York Co. — Continued. & 10th Av., S. E.cor Lockman v. Reilly, 95 N. Y. 64. 153d St., N. — , bet. Stli Av. & McComb's Dam Ed Horton v. Childs, 4 Silv. Supm. 431. 154th St. & Elton Av., N. W. eor Stoker v. Schwab, 56 Super. 122. >f. — , bet. Amsterdam & St. Nicholas Avs Schwoerer v. Leo, 39 Misc. 505. S. — , bet. 8th Av. & Mc- Comb's Dam Ed Horton v. Childs, 4 Silv. Supm. 431. 160th St., N. — , 125' W. of 10th Av I^app V. Crane, 14 A. D. 120. 161st St. & Trinity Av., N. W. cor Lowerre v. Owens, 14 A. D. 215. 165th St., W., # 460 Uebelaeker v. Uebelacker, 112 Supp. 527. 166th St., N. — , bet. Park & Washington Avs Ridley v. Walter, 153 A. D. 65. 173d St. & Amsterdam Av., N. W. cor Ungrich v. Schaflf, 119 A. D. 843. 175th St. & St. Nicholas Av., S. E. cor Hardenbergh v. McCarthy, 130 A. D. 538. 176th St., S. — , 314.97' E. of Anthony Av Downes v. Wenninger, 150 A. D. 914. 177th St., # 468 Smith v. Peyrot, ^01 N. Y. 210. N. — , 152' 9%" W. of Mar- mion Av Pope v. Levy, 54 A. D. 495. 178th St., N. — , 175' W. of Audubon Av Eaumeister v. Demuth, 84 A. D. 394. 182d St. & Wadsworth Av., S. E. cor Schnitzer v. Bernstein, 119 A. D. 47. 187th St. & HoflFman St., N. Garibaldi, etc., Co. v. Santangelo, W. eor 164 A. D. 513. 209th St., S. — , 100' E. of 10th Av Scholle v. Scholle, 101 N. Y. 167. 228th St., E Garrett v. Cohen, 63 Misc. 450. Niagara Co. Niagara Falls, W. — High- land Av De Veaux College v. Highlands L. ' Co., 63 A. D. 461. OrrEiDA Co. Boonville Lighthall v. McGuire, 20 A. D. 248. Forestport Lighthall v. McGuire, 20 A. D. 248. New Hartford Guelich v. Clark, 3 T. & C. 315. Eemsen Lighthall v. McGuire, 20 A. D. 248. Table ot Localities Affected. cxxxi Oneida Co. — Continued. Utica Bellinger v. Roatstone, 6 W. D. 69. Wliiteborough Tucker v. Woods, 12 Johns. 190. Onondaga Co. Baldwinsville Lamerson v. Marvin,' 8 Barb. 9. Liverpool Hasbrook v. Paddock, 1 Barb. 635. Lysander, Lot ^jt 78 Mann v. Pearson, 2 Johns. 37. Manlius, Lot # 16 Ellis v. Hoskins, 14 Johns. 363. Syracuse Ingalls v. Hahn, 47 Hun, 104; 36 S. R. 770. Hudson St Cliureh v. Bourne, 79 Misc. 629. Montgomery & E. Water Sts., S. W. cor Lighten v. Syracuse, 112 A. D. 589 Onondaga & Warren Sts., N. W. cor Hardie v. Andrevirs, 13 Civ. Proc 413. Ontabio Co. Generally Hotehiiss v. Clifton A. Cure, 2 Abb. Dee. 406. Canandaigua, E. — Main St. McKechnie v. Sterling, 48 Barb. 330 Victor Lewis v. McMillen, 41 Barb. 420. Okange Co. Goshen Morgan v. Fullerton, 9 A. D. 233. Craigville Rd. & Main St., E. cor Myers v. McCullagh, 63 A. D. 321 Middletown, High St., W. — . Royce v. Adams, 123 N. Y. 402. Wickham Av., S. E. — Keating v. Guixther, 10 Supp. 734. Newburgh, E. — Water St . . . Seymour v. Delancy, 3 Cow. 445 ; 1 Hop. 436. New Windsor, Silver Stream I{^ Flanagan v. Thomas, 166 A. D. 941 Port Jervis Johnson v. Reeves, 48 How. Pr. 505 Walden, Main St. & Ulster ^y cor Roos V. Lockwood, 59 Hun,' 181, Walkill, Minisink patent. Lot jf 39 Waters v. Travis, 9 Johns. 450. Waywayarda patent Osgood v. Franklin, 2 Johns. Ch. 1. Oswego Co. Oswego Penfield v. Clark, 62 Barb. 584. Schroeppel, Scriba's patent. Township # 24, Lot # 29. . Schroeppel v. Hopper, 40 Barb. 425. Otsego Co. Cherry Valley, Young's patent Osgood v. Franklin, 2 Johns. Ch. 1. Queens Co. Astoria Pomeroy v. Drury, 14 Barb. 418. Barbadoes Creek, S — Crabbe v. Hardy, 77 Misc. 1. Bayside, Mickle Est., bl. # 20, Lots # 719 & 722 Leavitt v. Thornton, 123 A. D. 683. cxxxii Table op Localities Affected. Queens Co. — Continued. Brooklyn Manor, Jamaica Av., N. — Merritt v. Archer, 163 A. D. 648. College Point, 2d Av. & llth St., S W. cor People v. Mutual B. Co., 9 A. D. 628. Kast Elmhurst, Bay Shore Terrace, E. — Tanzer v. Bankers Land, etc., Cpn., 159 A. D. 351. East Rockaway, Atlantic Av., S. — Clarke v. Wollpert, 128 A. D. 203. Far Rockaway Cliflford v. Morrell, 22 A. D. 470. Far Rockaway Bullard v. Bicknell, 26 A. D. 319. Far Rockaway Loekridge v. Raab, 68 Misc. 230. Flushing Leggett v. Mutual L. I. Co., 64 Barb. 23; 53 N. Y. 394. Flushing Miller v. Wright, 109 N. Y. 194. Flushing Knevals v. Prince, 10 Supp. 676. Flushing Carr v. Dooley, 19 Misc. 553. Bowne Park Blate v. Clarry, 50 Misc. 668. Broadway, # 107 J'oland v. Italian S. Bank, 123 A. D. 598. Hempstead Matter of Valentine, 72 N. Y. 184. Hempstead Anderson v. Davison, 42 Hun, 431. Jamaica, Canal St., W. — ..,. Mitchell v. Van Allen, 75 A. D. 297. Fulton St., S. — Hilliker v. Bast, 64 A. D. 552. Hillside Av., N. — Matter of Hopkins, 33 A. D. 615. Jamaica South, Old South Rd. Mandel v. Hopkins, 160 A. D. 872. Long Island City Sunswiek L. Co. v. Murdock, 129 A. D. 579. Borden & East Avs., N. E. cor Ring v. Palmer, 83 A. D. 67. Crescent St,. S. E. — , 300' -S. W. of Wilbur Av Snyder v. Parezo, 151 A. D. 110. Lockwood St., N. W. — , 103' 7%" N. E. of Beebe Av McQuillan v. McQuillan, 134 Supp. 893. Rawson St., W. — , 215' 1%" S. of Skillman Av.. Schueler v. Dooley, 149 A. D. 814. 13th Av., S. E. — , 508' 4" N. E. of Broadway Gilsow v. Schmidt, 156 A. D. 911. Middle Village, Williamsburgh & Jamaica Tpke. & Old Dry Harbor Rd., N. W. cor.... H. & H. Reiners v. Niederstein, 55 A. D. .80. Morris Park, Briggs Av., E. — , 180' N. of Stewart Av. Jacobs v. Fowler, 135 A. D. 713. Table of Localities Affected. cxxxiii Queens Co. — Continued. Maure At., W. — , 100' S. of Grarden St Barkenthien v. People, 212 N. Y. 36. Wicks St., W. — , 173' 3" N. of Broadway Finch v. Gillespie, 122 A. D. 858. North Hempstead, Glen Cove & Hempstead Rd., N. — . . . Taber v. Willetts, 1 A. D. 285. Oyster Bay Summers v. Burtis, 4 Edw. 728. Rockaway Beach, Brandeth Av. & Rockaway Beach Bvd., S. W. cor Recht v. Herschman-B.-E. Co., 139 A. D. 300. Bruce PI. & Eldert Av Rosenfeld v. Miller, 131 A. D. 282. Woodsburgh Wood v. Nesbitt, 62 Hun, 445. Woodside Terrace, Holmes Av. Maas v. Morgenthaler, 136 A. D. 359. Woodville Centre, Flushing & Fulton Avs., N. E. cor Kerrigan v. Backus, 69 A. D. 329. Rensselabb Co. Generally Day v. Reynolds, 23 Hun, 131. Brunswick Davison v. De Freest, 3 Sand. Ch. 456. Lansingburgh, Congress St., E. — Hartwell v. Riley, 47 A. D. 154. Troy, 4th St., W. — , bet. Broadway & State St Wiltsie v. Shaw, 100 N. Y. 191. Richmond Co. Generally ■ Griswold v. Fowler, 6 Abb. Pr. 113. Castleton, Bard &, Bement Avs. N. E. cor Freedman v. Oppenheim, 187 N. Y. 101. Edgewater, Bay St. & Clinton Av Hodges v. Walker, 76 A. D. 305. Middletown, Bradley Av. & Gun Factory Rd Arnow v. Carmel R. Co., 141 A. D. 913. New Brighton, Franklin Av., W. — , 50' N. of Prospect Av Townsend v. Pendleton, 120 A. D. 890. Richmond Ter., S. — Gibert v. Peteler, 38 Barb. 488; 38 N. Y. 165. Richmond Ter. & Jersey St., N. E. cor Lembecl;:, etc., Co. v. Rosenstein, 168 A. D. 563. Northiield, Granite Av. & Richmond Ter., S. E. cor . . . Henretty v. McGuire, 6 W. D. 393. cxxxiv Table op Localities Affected. Richmond Co.. — Continued. Port Eichmond Greenfield v. Beaver, 30 Misc. 366. Bossville Peters v. McKeon, 4 Den. 546. Stapleton, Bay & Wave Sts., S. E. cor Bardes v. Herman, 144 A. D. 772. Bay & Wave Sts., N. E. cor . Warth v. Herman, 207 N. Y. 745. Rockland Co, Generally Verdin v. Slocum, 71 N. Y. 345. Generally Mead v. Brunnemer, 6 S. R. 38. Clarkstown, Mont Moor Ziehen v. Smith, 148 N. Y. 558. Haverstraw Knapp v. Conger, 59 N. Y. 635. Nyack, Depew Av Guernsey v. Van Riper, 126 A. D. 368. Grand & 6th Avs., N. E. cor. Prentice v. Townsend, 143 A. D. 151. Main St., N. — De Jong v. Couch, 32 A. D. 625. Upper Nyack, Broadway, E. — Ayers v. Courvoisier, 101 A. D. 97. St. Lawkence Co. Edwards, Oswegatchie River, S. — Rhoades v. Freeman, 9 A. D. 20. Pierpont, N. branch La Grasse River, N. — Miller v. Ball, 64 N. Y. 286. Saratoga Co. Moreau Palmer v. Hudson V. Ry. Co., 134 A. D. 42. Saratoga Springs, Little Lake, N. — Fryer v. Rockefeller, 63 N. Y. 268. Presbyterian Church, pew # 33 Foote V. West, 1 Den. 544. Waterford, 1st St., # 28 Clexton v. Tunnard, 119 A. D. 709. Schenectady Co. Schenectady, Albany Tpke. ... Van Eps v. Schenectady, 12 Johns. 436. SCHOHAEIE Co. Middleburgh Karker v. Haverly, 50 Barb. 79. Sharon, P. Livingston's patent Osgood v. Franklin, 2 Johns. Ch. 1. SCHUTLEE Co. Hector Reynolds v. Strong, 82 Hun, 202. Steuben Co. Bath Ritchie v. Bennett, 35 A. D. 68. Campbell Whittemore v. Farrington, 76 N. Y. 452. Howard Russell v. Wales, 119 A. D. 536. TJrbana Ellsworth v. Cuyler, 9 Paige, 418. Suffolk Co. Aquebogue, Mill Creek, N. — . Downs v. Lehman, 123 A. D. II. Babylon Clody v. Southard, 57 Misc. 242. Hicksville to Syosset Hioksville, etc., R. R. v. Long Is. R. R., 48 Barb. 355. Table of Localities Affected. cxxxv Suffolk Co. — Continued. Huntington, West Neck Av., E. — Lingke v. Sammig, 115 A. D. 882. Montauk Point Benson v. Corbin, 145 N. Y. 351. Port Jefiferson, Terryville Rd., Port J. R. Co. v. Woodhull, 128 A. W. — D. 188. Sullivan Co. Livingston Manor Ten Broeek v. Livingston, 1 Johns. Ch. 357. Oakland Wheeler v. Tracy, 49 Super. 208. Tioga Co. Generally Baldwin v. Munn, 2 Wend. 399. Tompkins Co. Groton Conger v. Weaver, 20 N. Y. 140. Ithaca Johnson v. Gere, 2 John. Oh. 546. East Seneca St., # 63 ... . Ryder v. Coburn, 47 A. D. 182. Teyon Co. Generally O=igood v. Franklin, 2 Johns. Ch. 1. Ulster Co. Hardenbergh, Hardenbergh patent. Great Lot # 6, Robinson Tract, subdivision 3, Lot # 162, N. E. % . . . . Murdock v. Kelly, 62 A. D. 562. Kingston Hasbrouck v. Tappen, 15 Johns. 200. Jansen Av., # 145-147 Van Williams v. Elias, 106 A. D. 288. Prospect St., # 135 Van Williams v. Elias, 106 A. D. 288. Marlboro, Hudson River, W. — Kerr v. Purdy, 51 N. Y. 629. Washington Co. Easton, Hudson River, E. — . Darrow v. Cornell, 12 A. D. 604. Hebron Bowen v. Bell, 20 Johns. 338. Hebron Harsha v. Reid, 45 IJ^. Y. 415. Kingsbury Daly v. Bruen, 88 A. D. 263. Lake George, island & penin- sula in Osgood v. Franklin, >2 Johns. Ch. 1. Queensberry Osgood v. Franklin, 2 Johns. Ch. 1. Wayne Co. Generally Hackett v. Huson, 3 Wend. 249. Lyons Wilsey v. Dennis, 44 Barb. 354. Westchester Co. Armonck Reeder v. Schneider, 3 T. & C. 104. Belmont, Columbia Av., S. — -, bet. Jackson & Monroe Avs. Marshall v. Wenninger, 23 A. D. 275. Eastchester, Washingtonville.. Wilhelm v. Wilkin, 149 N. Y. 447. Greenburgh Cromwell v. Hull, 97 N. Y. 209. cxxxvi Table of Localities Affected. Westchester Co. — Continued. Greenburgh Benedict v. Webb, 98 N. Y. 460. Greenburgh Roberts v. Cary, 84 Hun, 328. Chatterton Hill, Washing- ton Av., W. — ' Board of Education v. Eeilly, 71 A. D. 468. Cliauncey Bensinger v. Erhardt, 74 A. D. 169. Larchmont Manor, Park Av., N. — Hegeman v. Stearns R. Co., 117 A. D. 754. Mamaroneck Smith v. Smeltzer, 1 Hilt. 287. Neck Oakes v. De Lancey, 71 Hun, 49. Morrisania Matter of Lynch, 33 Hun, 309. Mt. Pleasant Taylor v. Klein, 47 A. D. 343. Mt. Vernon Cromwell v. Phipps, 6 Dem. 60 ; 17 S. R. 10. Mt. Vernon Lewine v. Gerardo, 60 Misc. 261. Mt. Vernon Reid v. Johnson, 121 Supp. 750. Pulton Av., W. — , 185' S. of Prospect Av Mead v. Martens, 21 A. D. 134. 4th Av., W. — Williamson v. Banning, 86 Hun, 203. E. 4th St., bet. Fulton & Franklin Avs oity, etc., Co. v. Bussing, 156 A. D. 315. 6th St. & 8th Av., N. E. cor. Wilmurt v. McGrane, 16 A. D. 412. S. 9th Av., E. — Messinger v. Foster, 115 A. D. 689. New Castle Gale v. Archer, 42 Barb. 320. Peekskill, Washington St., W. — , 82' 6" N. of Hudson Av. Smith v. Hull, 97 A. D. 228. Pocantico, Carlsbrook & Rip- persdale Rds Catholic Foreign Mission Soc. v. Ouasani, 215 N. Y. 1. Pelham, High Is Begen v. Pettus, 144 A. D. 476 ; 167 A. D. 622. Port Chester, Byram River, W. — Metzger v. Martin, 87 A. D. 572. Scarsdale, Lincoln Av., E. — .. Rhodes v. Caswell, 41 A. D. 229. South Belmont, Garden St., S. W. — Cerf V. Diener, 148 A. D. 150. Tarrytown, Central Av., S. — , bet. Orchard St. & Cottage PI Griffin v. Baust, 26 A. D. 553. Unionport, Jackson St. & Rail- road Av., S. B. cor Matter of Clarke, 131 A. D. 688. Wakefield, Prospect Ter. & 15th Av., S. W. cor Foy v. McGarry, 160 A. D. 329. Table of Localities Affected. cxxxvii Westchester Co. — Continued. Washingtonville, Fulton St., N. W. — Baeeht v. Hevesy, 115 A. D. 509. Westchester Bruner v. Meigs, 64 N. Y. 506. Bear Swamp La., N. — . . . . Dennerlein v. Dennerlein, 111 N. Y. 518. Throgg's Neck Cook v. Saekett, 110 A. D. 322. Ferris La., E.— Furst v. Bohl, 133 A. D. 627. Yonkers Odell v. Odell, 21 W. D. 90. Bennett &, Cook Avs., cor . . Weisendanger v. Westchester T. Co., 58 Misc. 472. Broadway, E. — Ackerman v. Gorton, 67 N. Y. 63. Carlisle PI., # 18 Frain v. Klein, 18 A. D. 64. Central Park & Palmer Avs., S. E. cor Brown v. Lawrence P. R. Co., 133 A. D. 753. High St. & Palisade Av., N. E. cor Fuller v. Scribner, 76 N. Y. 190, Hudson Park White v. Kane, 51 Super. 295. Hudson River, E. — Herriot v. Prime, 155 N. Y. 5. Lafayette PI. & Palisade Av., S. W. cor Buxbaum v. Devoe, 123 A. D. 653. Morningside Av., # 112.... Langdon v. Schiflf, 189 N. Y. 548. Park Hill Av., E. — Park H. Co. v. Herriot, 41 A. B. 324. Tuckahoe Ed., N. — , 100' E. of Sawmill River Ed.. Eunyon v. Grubb, 119 A. D. 17. Vineyard Av., # 133 Abate v. Bianco, 143 A. D. 511. Woodworth Av., # 180 Magee v. Palmer, 150 A. D. 356. Yorktown Hyatt v. Seeley, 11 N. Y. 52. Yorktown McKean v. Hill, 166 A. D. 18. Pine's Bridge, Croton Tpke., E. — Tompkins v. Hyatt, 28 N. Y. 347. Yates Co. Generally Holmes v. Bush, 35 Hun, 637. MARKETABILITY OF TITLE. CHAPTER I. INTRODUCTION. Scope of Subject. § 1. Legal. — The law of marketability is purely ad- jective. It is concerned solely with, the question whether any given title can reasonably be expected to be dis- turbed. It cannot possibly extend to the intrinsic merits of the title. A title that is absolutely good may be un- marketable — because the owner is unable to prove some essential fact in his chain. A title that is bad may nevertheless be marketable — where neither ven- dor nor vendee has reason to suspect the flaw. Con- sequently the substantive law of real property, the doctrine that determines whether a title is good or bad, is wholly outside the scope of marketability. It is the ground upon which marketability law rests; but it is no part of the marketability structure. A com- plete knowledge of the substantive law of real prop- erty, including every statutory change and the exact date thereof, must be presupposed in a discussion of marketability. The law of marketability is- derived from the common law and from the doctrines of equity as inherited from England. The earliest 'cases in this state accept it with- out comment as an existing and well recognized doc- trine. Fortunately it has thus far escaped all regula- tion by statute and perhaps will continue to be exempt, for the subject does not need either legislative aid or codification. Its growth has been guided by logic, 2 Introduction. witli no outside interference except tlie general prin- ciples of equity; and its application is usually from an academic point of view a simple matter. Its develop- ment has been normal, narrowed here and there by spasms of technicality or timidity on the part of some few judges, but on the whole maintained along gener- ous and liberal lines. It was at one time suggested that marketability was strictly an equitable doctrine, that in an action by ven- dee for breach of contract plaintiff must prove that the title offered is absolutely bad, not merely that it is doubt- ful.^ But it may be doubted whether that suggestion was ever authoritatively adopted, for in the same year in which it was uttered by the supreme court the court of appeals laid down exactly the opposite rule — that vendee did not have to show that title was absolutely bad, but only that it was open to reasonable doubt.^ In a recent case in the latter court the question is definitely set at rest. " The distinction which once pre- vailed as to marketable titles between law and equity no longer exists, and an action at law by the vendee to recover back purchase money may be based upon the same ground that would justify a court of equity in re- fusing to compel him to accept the title. "^ § 2. Physical. — Practically the only questions of title discussed in the New York cases are local ques- tions; but theoretically the state courts are competent 1. Ingalls V. Hahn, 47 Hun, 104. 2. Methodist Episcopal Chureh Home v. Thompson, 1 Silv. C. A. 564, affig. 52 Super. 321 (but not approving opinion) ; Priessenger V. Sharp, 59 Super. 315; Baylis v. Stimson, 110 N. Y. 621, affg. 53 Super. 225, without deciding whether there is any difference in this respect between a contract for fee simple and an assignment of lease. There is no sound reason why there should be. Sea § 54. 3. Brokaw v. Duffy, 165 N. Y. 391, affg. 36 A. D. 147. Scope of Subject. 3 to determine questions of marketability affecting land outside the state and they have occasionally done so. If the court obtains jurisdiction of defendant by per- sonal service it -may proceed with the case; for despite the fact that its decree cannot directly affect the land, it can be made effective through its power over defend- ant 's person and his property within the state. Nor is there any inherent objection to the New York court's determining questions of foreign law, although it might refuse to adjudge an extraordinarily difficult case. Ordinary questions can be decided upon proof of foreign law according to the regular rules of evi- dence.* 4. Cleveland v. Burrill, 25 Barb. 532 ; Myres v. De Mier, 4 Daly, 343, affd. 52 N. Y. 647; Baldwin v. Talmadge, 39 Super. 400. CHAPTER II. GENERAL PRINCIPLES. 1. Definition. § 10. Point of View. — What is a marketable title? From the conveyancer's point of view it is one which the courts will require a purchaser to accept. From the court's point of view it is one which a reasonable man will accept. From the reasonable man's point of view it is one which will not be subjected to litigation. From the litigant's point of view it is one which is not worth attacking. The reasonable man can afford to take some slight risk, because his title is steadily strengthened by lapse of time. As the years pass with him in possession, one after another of possible claims, known or unknown, becomes outlawed and hostile evidence becomes scattered and extinguished, while increasing weight attaches to the record title, and such favorable evidence as sur- vives gains in scope. But the final test is (or should be) the point of view of the claimant, real or alleged, actual or hypothetical, at the closing date. There are a variety of factors influencing the claim- ant's mind which have not received judicial recognition and cannot be expected to get it. Chief among these is the moral standard of the community. In a farming district the ownership of realty is popularly known ; fam- ily history is familiar to the neighborhood; boundaries are recognized by rough but sufficient measurement ; and each owner is in actual possession of his premises and uses substantially the whole of them. In such a com- munity each member knows what a purchaser expects to get for his money and no one sympathizes with a specu- lative attack upon title or a technical refusal to com- (4) Definition. 5 plete a bargain. Consequently the law of marketability makes a close approach to common sense and justice. In the great cities, on the other hand, very different standards prevail. Real estate has marvelously in- creased in value and is bought not necessarily for pos- session and use but frequently for speculation; family affairs may be unknown to the closest neighbors; and where every inch is valuable, precision of measurement becomes indispensable. Public opinion lauds the sort of success that is distinguished by wealth and at times has been known to acquiesce in the doctrine that — " They should take who have the power And they should keep who can." Consequently the most minute technicality may become the foundation of attack upon title ; while public opinion has little, if any, restraint upon claimant. Even pro- fessional ethics has seemed to countenance the instiga- tion of a lawsuit by members of the bar upon contingent fee agairist an innocent purchaser for value in the hope that comprorqise may follow an attack based upon the shallowest of pretexts. When therefore the law of marketability is modified by metropolitan cases it grows technical and complex, and the judicial point of view wavers between protection of honest title against adven- turous attack on the one hand, and on the other the dis- countenancing of slipshod conveyancing and dishonest litigation brought to cut off genuine rights without due notice. The more complex the subject grows, the more the claimant is encouraged to litigate and the more nearly perfect must a title be to be held marketable. Fortunately the attitude of the courts has in spite of this development remained liberal, and has sanctioned highly technical rulings in only a few topics. § 11. Judicial Opinions. — MarketaUliti/. — The judi- cial definition of marketability is a simple one, though 6 General Principles. repeated with many shades of emphasis and much para- phrase. " A marketable title is one that is free from rea- sonable doubt ;"^ " free from doubtful questions of fact or law. ' '^ It is one that a reasonable man after fair con- sideration would not hesitate to take;' that an ordi- narily prudent man would accept when offered for sale or as security for a loan;* that " might be sold to a rea- sonable purchaser or mortgaged to a person of reason- able prudence as security for the loan of money. ' " The same idea is stated more elaborately and in a form difficult to improve upon in Todd v. Union Dime Savings Institution, 128 N. Y. 636, as follows: "A pur- chaser is not entitled to demand a title absolutely free from all suspicion or possible defect. He may claim a a marketable title, and that means a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to per- form his contract, would, in the exercise of that pru- dence which business men ordinarily bring to bear upon such transactions, be willing to accept, and ought to accept." Another elaborate definition is as follows : " To re- fuse a specific performance of a contract for the pur- chase of real property, it is not incumbent on the court to judicially determine that there is such inherent de- fect in the title that it cannot in the end be cured. It is sufficient * * * that upon close scrutiny the title seems doubtful; that is discloses apparent flaws which indicate possible or probable danger sufficient in charac- 1. Vought V. Williams, 120 N. Y. 253; Moot v. Business Men's Investment Assn., 157 N. Y. 291; Downey v. Seib, 102 A. D. 317, affd. 185 N. Y. 427; Fleming v. Burnham, 100 N. Y. 1. 2. Brokaw v. Duffy, 165 N. Y. 391. 3. Fowler v. Manheimer, 70 A. D. 56, affd. 178 N. Y. 581, with- out opinion. 4. Wanser v. De Nyse, 188 N. Y. 378. 5. Reynolds v. Strong, 82 Hun, 202. ^ Definition. 7 ter to caution a man of reasonable prudence against claims and rights adverse to those of the vendor. The defects, however, must have a substantial basis. The purchaser is justified in demanding a title upon which he may reasonably rest secure without apprehension from hostile claims of others, which the state of the record and muniment of title give good reason to fear may at some time be interposed. ' '" Two practical tests of unmarketability — danger of litigation and impairment of value — are adopted by the court of appeals (second division) in Vought v. Williams, 120 N. Y. 253 : " The doubt must be such as affects the value of the land or will interfere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and if he wishes to sell it, be reasonably sure that no flaw will arise to disturb its market value." To the same ef- fect are the following: "A purchaser ought not to be compelled to take property the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one that if he wishes to sell it would be reasonably free from any doubt which would interfere with its market value. If it may be fairly questioned specific performance will be refused. "'' "A purchaser ought not to be com- pelled to take property, the possession of which he 6. Schultz V. Rose, 65 How. Pr. 75. After laying down the fore- going careful and satisfactory rule, the court decided the case upon the unsupported proposition that title must be good to a " moral certainty." 7. McPherson v. Sehade, 149 N. Y. 16. 8 General Principles. may be obliged to defend by litigation."® A title "subject to a serious question of fact which might be de- cided in different ways by different tribunals" is not marketable. Vendee is " not obliged to accept a title * * * under the shadow of an impending lawsuit."^ These tests are all ignored by Haberman v. Baker, 128 N. Y. 253, whicb is unique in asserting that "if notwithstanding all the legal questions raised by ob- jections, or suggested from the records, the vendor is found to have the legal title to the premises and has a legal right to convey, as he has agreed, performance by the vendee must be decreed." Where the bargain . contemplates that vendor shall acquire title from the present owner on the closing day and then and there transfer same to vendee, vendor is not bound to accept from such owner a title objected to by vendee." § 12. Reasonable Doubt. — Reasonable doubt may be described in language differing more or less from that quoted in the preceding paragraphs, but it can hardly be defined. Various tests have been proposed and various descriptions suggested. "A rational doubt may be said to exist," said the court of appeals in Shriver v. Shriver, 86 N. Y. 575, * ' when a court of law would not feel called upon to in- struct a jury to find that the fact existed, on the exist- ence of which the vendor's title depended." "There is reasonable doubt " about a title " when there is un- 8. Heller v. Cohen, 154 N. Y. 299; Moot v. Business Men's In- vestment Assn., 157 N. Y. 201; Dyker Meadow Land etc. Co. v. Cook, 159 N. Y. 6; Downey v. Seib, 102 'A. D. 317; Heiberger v. Zarfiol, 202 N. Y. 419; Reynolds v. Strong, 82 Hun, 202. 9. Brokaw v. Duffy, 165 N. Y. 391. 10. Baldwin v. McGrath, 90 A. D. 199, rvsg. 41 Misc. 39, fol- lowed 188 N. Y. 606, without opinion. Definition. 9 certainty as to some fact appearing in the course of its deduction." ^^ "An apparent lien created by the mort- gage " of one of two tenants by the entirety was held to create doubt where the survivor had not clearly repudi- ated the title of the mortgagor.^^ The doubt must be sufficient to affect value and interfere with a sale to a reasonable purchaser.^* The doubt should go further than suspicion." It should amount to a reasonable apprehension that ques- tions may arise affecting the peaceful holding of the property and impairing its market value. ^^ If it in- volves dangerous uncertainties,^® or is based on a rea- sonable objection and is met by no clear and satisfac- tory proof that such objection is without foundation," it renders title unmarketable. The probability of litigation is often mentioned as a test — " a reasonable, decent probability."^* The title be- comes unmarketable when it contains " the hazard of a contest with other parties, which may seriously affect the value of the property ;"^^ or "some practical and serious question * * upon which persons not parties to the suit, and who cannot be estopped by the judg- ment, have a right to be heard in some possible future litigation"^" or "a question of sufficient importance to 11. Vought V. Williams, 120 N. Y. 253. 12. Eeynolds v. Strong, 82 Hun, 202. 13. Higgins v. Eagleton, 155 N. T. 466; Goodwin v. Crooks, 58 A. D. 464. 14. Shriver v. Shriver, 86 N. Y. 575. 15. Emens v. St. John, 79 Hun, 99. 16. Matter of Mahoney, 34 Hun, 501. 17. Wilhelm v. Federgreen, 2 A. D. 483, affd. 157 N. Y. 713, on opinion below. 18. O'Reilly v. King, 2 Robt. 587. 19. Jordan v. Poillon, 77 N. Y. 518; People v. Knickerbocker Life Ins. Co., 66 How. Pr. 115 ; Knee v. Kuykendall, 6 S. R. 1. 20. People y. Globe Mutual Life Ins. Co., 33 Hun, 393. 10 General Principles. impair the value of the estate sold, by casting a cloud upon the title, or by subjecting the purchaser to the risk ■of a contest at law." ^^ A merely captious objection, or a mere suggestion of defect which no reasonable man would consider, though within the range of possibility, or one clearly invalid by the law as settled, whatever doubts at a former time may iiave existed, is not available to purchaser, and will be disregarded.^^ A purely imaginary possibility is not sufficient to create doubt ;^^ or a mere possibility that title may be affected by existing causes which may sub- sequently develop.^* A title does not have to be abso- lutely free from all suspicion or possible defect.^' It is not sufficient to say simply that certain facts may exist which would throw doubt upon the title; vendee must at least give some suggestion of evidence to warrant the «ourt in inferring that the defects which would invali- date the title do exist, and until such facts are stated, the ti^le will not be impeached.^" § 13. Good; Satisfactory; Clear Record Title. — The purchaser of " good " title will not be compelled to ac- cept doubtful title ; he is entitled to a title good both at law and in equity.^^ " Good title " is one not in fact legally defective; it may be evidenced by the defeat of a ■claim brought against it.^® A contract provision for "satisfactory" title does not give vendee an absolute right to reject He is bound to accept title to which there is no reasonable objection.^* 21. Argall v. Eaynor, 20 Hun, 267. 22. Fleming v. Burnham, 100 N. Y. 1. 23. Baylis v. Stimson, 110 N. Y. 621. 24. Higgins v. Eagleton, 155 N. Y. 466, 25. Doremus v. Doremus, 66 Hun, 111. 26. Goodwin v. Crooks, 58 A. D. 464. 27. Morris v. Mowatt, 2 Paige, 586. 28. Mahaiwe Bank v. Culver, 30 N. Y. 313. 29. Fagen v. Davison, 2 Duer, 153. Definition. 11 *' Satisfactory " title means good marketable title; not that vendee may reject for any honest belief that it is defective. Its validity is for the court to decide.^" The requirement of " good and satisfactory " title does not add to vendee's obligation. A good title must be re- garded as a satisfactory one.^^ A contract calling for a search showing marketable title and the curing by vendor of any defects disclosed of record was interpreted by a dissenting judge in the appellate division as calling for " clear record title " — something more than marketable title; but the majority of the court held that a chain of title from which two recited deeds were missing prior to 1831 was in the light of well established possession sufficient to comply with the contract. ^^ § 14. First Class; Perfect. — A "first class" title is nothing more than a marketable title. ^^ Mathematical certainty of a good title is impossible.^^ It is therefore not correct to say that a title not perfect is unmarketable, as the court remarked in Lee v. Lee, 27 Hun, 1. In short it seems that adjectives intended to describe the degree of merit to be attached to the title bargained for in no way affect the vendor's obligation. Unless an intention to take subject to a -defect is shown, vendor must convey marketable title — neither more nor less. § 15. Approval; Insurable. — '■ The decision of an arbi- ter that title is good obliges vendee to perform the con- tracts^ 30. Rigney v. Coles, 6 Bosw. 479. 31. Moot V. Business Men's Investment Assn., 157 N. Y. 201, rvsg. 90 Hun, 155. 32. Koons v. Potter, 105 A. D. 622. 33. Vought V. Williams, 120 N. Y. 253. 34. Hill V. Ressegieu, 17 Barb. 162; Grady v. Ward, 20 Barb. 543. 35. Denham v. Stillwell, 3 Robt. 653. 12 General Peinciples. An early case, arising upon a contract which provided that if vendee's counsel did not find title good the agree- ment should be void, held that vendee had a right to rescind even for a curable defect.'^ This view was adopted by the court of appeals, where a title company, whose approval was called for by the contract, unrea- sonably refused to approve,'^ and followed by the appel- late division (second department) in the very recent case of Allen v. McKeon, 127 A. D. 277. On the other hand there is even stronger authority to the contrary. Beginning with a dictum of the court of appeals in Vought v. Williams, 120 N. Y. 253, to the effect that the approval of vendee's lawyer is not a condi- tion precedent,^* that an unreasonable refusal to approve will not protect vendee, and that such refusal is unrea- sonable if title is good beyond all dispute — the latest de- cision of that court is to the same effect, that vendee's attorney has no right arbitrarily or capriciously to re- fuse to be satisfied with the title. Jay v. Wilson, 91 Hun, 391, aflfd. 158 N. Y. 693, on opinion below. The ap- pellate division (fourth department) has also followed this ruling in a very recent case, applying it to the im- portant instance of a corporation counsel, representing a municipal corporation as vendee, yet not regarding his approval as essential.^' Where the contract calls for insurance, as well as approval, different considerations enter into the ques- tion. Insurance is customarily procured by vendee *" to facilitate sale or mortgage; and what such contract 36. Delafield v. James, 18 Abb. Pr. 221. 37. Flanagan v. Tox, 6 Misc. 132, overruling 3 Misc. 365, affd. 144 N. Y. 706, on opinion below. 38. Downs v. Lehman, 123 A. D. 11. 39. Lighten v. Syracuse, 112 A. D. 589, affg. 48 Misc. 134, rvsd. 188 N. Y. 499, on other grounds. 40. Eastman v. Home, 205 N. Y. 486. Doubtful Questions of Fact. 13 calls for is a policy free from exceptions which would leave open for adjudication by a court some factors in the title. Therefore when the title companies refuse to insure except subject to the state of facts shown by a survey, vendor cannot enforce specific performance by proving marketable title. ^^ But such insurance is no part of vendor's case; his tender of marketable title is sufficient in the absence of disapproval by the title com- pany.*^ 2. Doubtful Questions of Fact. § 16. Test. — All titles involve questions of fact. Metaphysically speaking, a title may be described — like most other phenomena — as a composite of facts any one of which may be questioned. The simplest imagin- able title, for instance, a patent from the state, still in- volves at least two complicated facts — execution of the instrument of conveyance and location of the premises. But obviously all of the facts in most titles and most of the facts in all titles cannot be seriously questioned, or from a common sense point of view cannot be questioned at all. Titles in the same way involve questions of law — usually arising on the construction of- written instru- ments ; and it is the purpose of this subdivision to point out the distinction between the two and to show what questions of fact create doubt sufficient to render title unmarketable. Perhaps it would have been better had no market- ability case attempted to define the difference between questions of law and those of fact, since the most that has been accomplished is the following cryptic rule: "The question as to the materiality of the defect is one 41. Beinhauer v. Morris, 142 A. D. 398. 42. Eastman v. Home, 141 A. D. 12, afEd. 205 N. Y. 486. 14 General Principles. of fact when it depends upon and is an inference to be drawn from circumstances.'"^ Traced back to its source, this proves to be a condensation of the rough memoran- dum report of Stokes v. Johnson, 57 N. Y. 673, and un- fortunately to have lost in the process not only lucidity but accuracy. What it probably means is that a ques- tion of fact is one that can be answered by inferences from circumstances. The actual proof in any case is at best but fragmentary. Much must be taken for granted, or there would be no end to the evidence. Consequently there must be gaps in all cases. The gap is filled by some natural inference from the proven facts. It is questioned by inference from a hypothetical state of facts not inconsistent with those proven. When the ob- jection to title is of this character, it is based on a ques- tion of fact; when however it is not affected by such hypotheses and inferences it is based not upon a ques- tion of fact but upon a question of law. It may be doubted whether discussion of such a prob- lem aids materially in attaining a correct attitude to- ward marketability of title. Most people recognize a fact when they meet it.^ 1. Heller v. Cohen, 154 N. Y. 299, 306; Dyker Meadow Land etc. Co. V. Cook, 159 N. Y. 6, 15. Literally this rule seems to re- fer to the materiality rather than the characteristics of questions of fact; but the context indicates that it is an attempt at defini- tion. 2. The danger of wandering too far into the field of metaphysics is illustrated by the case of Schultz v. Rose, 65 How. Pr. 75, where the judge said: " Where all things are unknown, who can say that anything is improbable?" The title, he continued, may " be disturbed by claims arising from quarters often unexpected, and which it was supposed, or hoped, had been effectually cut off by lapse of time, the assertion of which however was delayed by con- ditions and disabilities which the law created and favored." And contrary to the rule now well established, he refused to approve a title based on 52 years' adverse possession. Doubtful Questions op Fact. 15 The construction of a written instrument is unex- pectedly described in Felix v. Devlin, 90 A. D. 103, as a disputed question of fact. § 17. Possibility. — Vendor is not required to produce a title against which there can be no possibility of a valid claim. In all cases purchaser must necessarily run some risk that the title may possibly prove bad in consequence of some defect therein which cannot be dis- covered or rationally anticipated. And such risk with- out reason to infer the probability of valid claim or sub- sisting lien does not render title unmarketable.' When the alleged fact supposed to cloud the title — such as the continued existence of a part owner not heard of for more than forty years, though previously in active correspondence with his mother — is a mere pos- sibility or very remote and improbable contingency, which according to ordinary experience has no prob- able basis, it does not affect marketability. In such case the court acting carefully and weighing guardedly the disputable fact may in its discretion decide to disre- gard it.* So of a deed defectively acknowledged twenty years ago when the notary testifies on the trial to all the requisite facts.^ Objection that part of the premises were shown by an unauthenticated map to be in the bed of a road is, after twenty-five years' occupation without hostile claim, too shadowy and contingent to affect title.^ Objection that lunacy may have prevented an adverse possession of forty-two years from ripening into title, in the absence 3. Dunham v. Minard, 4 Paige, 441. 4. Ferry v. Sampson, 112 N. Y. 415 ; Cambrelleng v. Purton, 125 N. Y. 610. 5. Button V. Webber, 60 Super. 247, afEd. 137 N. Y. 615, on opinion below. 6. Oakley v. Briggs, 17 Supp. 751. 16 General Principles. of any reason to believe it, rests on a mere possibility which is not enough to make title unmarketable.' That the legislature after creating a system of taxa- tion of mortgages upon their record in lieu of other taxes should at the very next session increase the tax on such mortgages is a contingency too remote to affect title.^ The law is satisfied with a moral certainty.^ An abundance of personalty and absence of known claim precludes the objection of possible disturbance from de- cedent's creditors.^" So where all judgment creditors of a recent owner who had begun suit to avoid said owner's conveyance as fraudulent were joined in foreclosure, but other judgment creditors who had not begun such suit were not joined.^^ Occasionally the court will indulge in a flight of fancy and entertain the idea of a highly improbable conting- ency, as that a bachelor of seventy will marry and leave issue,^^ or that several persons will die simultaneously.^^ When a lien or easement or other right in the premises is clearly established, the improbability that it wilj ever be exercised is not sufiScient to restore the title to market- 7. Wanser v. DeNyse, 125 A. D. 209, affd. 192 N. Y. 537, with- out opinion. 8. Frank v. Frank, 123 A. D. 802. 9. Hagan v. Drucker, 90 A. D. 28; Matter of Trustees of New York Protestant Episcopal Public School, 31 N. Y. 574; "Wein- traub V. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246; Johnston v. Gar- vey, 139 A. D. 659, affd. 201 N. Y. 548, on opinion below; Bardes V. Herman, 144 A. D. 772, affg. 62 Misc. 428. 10. Schermerhorn v. Niblo, 2 Bosw. 161; Moser v. Cochrane, 107 N. Y. 35, approving 12 Daly, 292. » 11. Carroll v. McKarahay, 35 A. D. 582. 12. Seaman v. Hicks, 8 Paige, 655. 13. Thall V. Dreyfus, 84 A. D. 569. Doubtful Questions of Fact. 17 ability ; ^* especially where the outstanding right is vested in a municipal corporation.^^ The possibility of issue is a relevant question under many wills. When presented without evidence of the physical condition of the possible parent it has been held that the chance of issue from a woman of seventy does not affect title/^ but from a man of seventy it is suffi- ciently great to make title unmarketable." " It is not a violent supposition," said the court in McPherson v. Smith, 49 Hun, 254, that a woman, whose exact age is not given but who in 1817 was a mother, should twenty- two years later give birth to another da,ughter who twenty years thereafter should die in childbirth leaving an infant who survived to his majority in 1880. 14. Mott V. Mott, 68 N. Y. 246, modifying 8 Hun, 474. Under the extremely urgent circumstances disclosed by Adair v. Adair, 74 N. Y. 622, the court adopted the contrary decision. The facts there were as follows : In 1847, R. L. owning a large tract, filed a map designating the block in question as a park; he conveyed to various persons all the residue of the tract by reference to the map and in most cases " subject to the payment " of $3 per annum to G, thereby constituted trustee, for regulating, fencing and improving said park and maintaining the fences; in 1852 R. L. conveyed to B, C and D, reciting map and deeds, habendum subject to the use of said owners with a covenant by grantees not to use same except as an ornamental park; the premises were mortgaged by the successors of B, C and D to raise funds to im- prove the park, but in 1862 were foreclosed and sold; notwith- standing these effo;rts, the character of the neighborhood changed, the adjoining owners stopped paying their assessments, the prem- ises became unkempt and a nuisance and all parties interested were by 1878 extremely desirous of having the premises turned into building lots. It may be inferred from the court's failure to de- liver an opinion that this case was not intended seriously to im- pinge upon the rule stated in the text. 15. Seaman v. Hicks, 8 Paige, 655; Brooklyn Park Commission- ers V. Armstrong, 45 N. Y. 234, rvsg. 3 Lans. 429. 16. Bacot V. Fessenden, 130 A. D. 819. ■ 17. Seaman v. Hicks, 8 Paige, 655. 18 Doubtful Questions op Fact. § 18. Uncertainty. — Insufficient Evidence. — Uncer- tainty may arise from entire lack of evidence, from the merely negative character of the evidence presented, from vague and obscure testimony or from conflicting testimony. Instances of lack of evidence occur in several of the cases discussed above/^ and in numerous others espec- ially those relating to adverse possession.^' It is obvious that if a party has the duty of showing that there are no claimants of a certain class, the possibility of which is demonstrated, as for instance persons whose rights have been extended by disability, he must fail if he introduces no evidence at all. The real question in such cases is — Who has the duty of introducing evidence? For the court will not, on some unlikely suggestion such as lun- acy, infer a claim merely because of the absence of evi- dence on both sides.^* Evidence of a purely negative character is all that vendor is able to produce in some cases, especially those of the disappearance of a former owner. Such evidence is not convincing and requires the support of a consid- erable period of years to susta.in title dependent thereon.^^ Slight evidence on the other side is enough to raise or fortify a doubt. ^^ Vague and obscure testimony is naturally insufficient to support title; it leaves a court of equity in a state of 18. Seaman v. Hicks, 8 Paige, 655 ; McPherson v. Smith, 49 Hun, 254; Schultz v. Rose, 65 How. Pr. 75. 19. See U 321-327. 20. Wanser v. DeNyse, 125 A. D. 209, affd. 192 N. Y. 537, with- out opinion. See more fully, Burden of Proof, §^ 500-503. 21. Vought V. Williams, 120 N. Y. 253, a%. 46 Hun, 638, And see Reynolds v. Strong, 82 Hun, 202, where the question arose as to an election under a will. 22. Shriver v. Shriver, 86 N. Y. 575. Insufficient Evidence. 19 uncertainty which suggests a trial by jury or at least a farther hearing before a master. ^^ Weak and inconclu- sive evidence may be a sufficient foundation for an estop- pel of judgment where all interested parties are in court ; but it is not a satisfactory basis of decision where the possible claimants are not represented.^^ It depends also upon the character of the proceeding; what was sufficient to sustain lunatic's proceedings may not be the equivalent of proof of heirship.^^ Contradictory testimony is the least satisfactory of all. In such case litigation becomes probable, the outcome of which is especially uncertain because dependent upon parol testimony.^^ Where the surveyor finds two lines laid out as the boundary of a lot, it is doubtful whether vendor had title to the intervening gore, and vendee may in equity have specific performance for the smaller par- cel with an allowance from the purchase price. ^' To sum up : "A title may be doubtful, which is to say unmarketable, because of the uncertainty of some mat- ter of fact. * * * If after the vendor has produced all the proofs that he can, a rational doubt still remains, a title is not marketable. * * * Where the title depends upon a matter of fact such as is not capable of satis- factory proof * * * a purchaser cannot be compelled 23. Seymour v. DeLancey, 1 Hop. 436, where several witnesses impeached a deed as a forgery. 24. Fleming v. Burnham, 100 N. Y. 1, rvsg. 36 Hun, 456; Rey- nolds V. Cleary, 61 Hun, 590. 25. Toy V. MeGarry, 160 A. D. 329. 26. Stephens v. Flammer, 40 Misc. 278, affd. 122 A. D. 918, without opinion, affd. 191 N. Y. 524, without opinion; McPherson V. Schade, 149 N. Y. 16, affg. 8 Misc. 424; Recor v. Blackburn, 71 Hun, 54. 27. Voorhees v. DeMeyer, 2 Barb. 37, affg. 3 Sand. Ch. 614; Dietz V. Farish, 44 Super, 190, affd. 79 N. Y. 520, on other grounds. 20 Doubtful Questions of Fact. to take it; or where the fact is capable of proof, yet is not so proved. "^^ § 19. Parol Evidence. — Titles dependent in part upon parol evidence are not favored by the courts. Numerous judicial opinions express the unmarketability of such titles in sweeping language; but they can hardly be ac- cepted literally in view of the multitude of cases wherein a title patched up by testimony or affidavits has been decreed sufficient. The general rule is expressed as follows in Blanck v. Sadlier, 153 N. Y. 551, a&g. 5 A. D. 81 : The vendor is bound to convey good title, free from any essential defect, and purchaser is not bound to ac- cept a conveyance differing from the contract in any material particular. Though the title tendered be in fact good, yet if it is subject to reasonable doubt, dependent upon the ascertainment of some material fact extrinsic to the record title, to be found by a jury when the ques- tion arises, the purchaser will not be required to com- plete. A record title, says the court in Coray v. Matthew- son, 7 Lans. 80, " is not only the most satisfactory, but to those acquainted with the law, the only one they will or can safely receive. A title is very largely depreciated that can only be established by a resort to evidence aliunde the record." And it refused to enforce a title dependent upon a lost deed, eleven years before, though positively testified to by grantee and recited in a pur- chase money mortgage afterwards foreclosed. Still stronger is the language in Weinstein v. Weber, 178 N. Y. 94, afifg. 78 A. D. 645, approving 58 A. D. 112 : " A party will not be required to take a title which de- pends for its completeness upon parol evidence," ex- cept where adverse possession is shown. "A purchaser should not be compelled to take a title which he might 28. Shriver v. Shriver, 86 N. Y. 575. Parol Evidence. 21 have to defend by resort to such perishable evidence." And vendor was not allowed to prove that the premises were partnership property. "Where there is a defect in the record title which can be supplied only by resort to parol evidence, and the title may depend upon questions of fact, the gen- eral rule is that the purchaser will not be required to perform. ' '^* The courts recognize, however, even in this class of cases that the objection must not be merely captious, and that " defects in the record or paper title may be cured or removed by parol evidence." Where the record showed title into Electa Wilds and a purchase money mortgage by her followed six years later by a deed by Electa Wilder, and vendor proved that same was lost, and produced the commissioner who took the acknowl- edgment and he testified that the deed was executed by Electa Wilds, the title was sustained.^" The same result was reached where the grantee's name was wholly miss- ing from the record, but appeared in the index, in a pur- chase money mortgage and in the testimony.^^ So where the brother-in-law of a defendant in foreclosure after twice bidding in the premises, notified purchaser that said defendant had not been served, the court sustained the referee's finding that the testimony of both defend- ant and brother-in-law was mendacious and unworthy of belief, and did not render title unmarketable.^^ 29. Heller v. Cohen, 154 N. Y. 299, rvsg. 9 A. D. 465; Wanser v. DeNyse, 188 N. Y. 378; Moore v. Williams, 115 N. Y. 586, affg. 55 Super. 116; Ingalls v. Hahn, 36 S. E. 770; Timmermann y. Cohn, 204 N. Y. 614, rvsg. 70 Misc. 327. 30. Hellriegel v. Manning, 97 N. Y. 56. 31. Heiberger v. Karflol, 202 N. Y. 419, affg. 134 A. D. 935. The deed was lost in this case also. 32. O'Connor v. Telix, 147 N. Y. 614, affg. 87 Hun, 179. 22 Doubtful Questions of Law. 3. Doiibtful Questions of Law. § 20. When Decided. — Theory. — It might seem from an academic point of view that a pure question of law ■could never be judicially regarded as doubtful — that the courts, whose business it is to decide such questions must know the ultimate law ; or what amounts to much the same thing, must act as though they did. A final de- cision upon a pure question of law answers that ques- tion by establishing the law. Under our system of juris- prudence, it becomes a precedent — a permanent fact in the body of the law which a powerful rule of public policy requires to be amalgamated with all existing law and all future decisions. Even if the decision be errone- ous, it nevertheless has great immediate vitality and is usually whittled into logical shape only bit by bit, by later decisions. It is supposed to conform to existing law, and future law is required to conform to it. If logically erroneous its result is not to become a nullity, but to change the law. Theoretically therefore a court of last resort takes no chances in deciding a pure ques- tion of law ; and an inferior court takes only the chance that it may be reversed upon appeal. Practically, however, the issue arises before a court of first impression which knows by experience that, right or wrong, it is not only liable to be reversed on appeal, but may be ignored or overruled by some appellate court in another case. Its knowledge of the human fallibility of judges teaches it caution in adjudicating questions upon which there is no technical estoppel, for it cannot guarantee the litigants that its decision will be respected in all subsequent controversies among different parties. Consequently the doctrine has arisen, and is firmly es- tablished, that there is such a thing as a doubtful ques- tion of law and that a purchaser need not be compelled to accept a title involving such question. When Decided. 23 As the court of appeals has said in the leading case of Fleming v. Burnham, 100 N. Y. 1 : " The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts.. In either case it may happen that the question is so doubtful that al- though the court would decide it upon the facts dis- closed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel a purchaser to take title, and it would relieve him from his purchase. The reason is obvious. * * * A title open to reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the ad- judication and could raise the same question in a new proceeding." Some courts have attempted without much success to indicate what class of legal questions may be con- sidered doubtful. " Whether the court would hesitate long and anxiously before deciding " was suggested in an opinion adopted by the general term of the supreme court in Heck v. Volz, 14 S. E. 409, afifd. 120 N. Y. 663, without opinion. And the court added that the possibil- ity of a stale demand without legal foundation does not render title doubtful. Nor can " a question of law which has been decided upon careful examination, and under such circum- stances as to make it practically a rule of property " " ever be said to be a doubtful question." Where the facts are conceded and the applicable rule of law has for years been " thoroughly well settled, * * * the mere fact that somebody chooses to raise a question as to 24 Doubtful Questions op Law. the existence of a well settled rule of law is not * * * sufficient to make a title * * * doubtful."^ " Objections which are merely captious, or suggestions of defects which no reasonable mind would draw, al- though within the range of possibility, or those which are clearly invalid by the law as settled, whatever doubts may at a former time have existed as to the question raised, are not available to the purchaser." Yet the court may be satisfied from the briefs of counsel that the doctrine involved is so obscure and uncertain that the question at issue i« open to challenge.^ " Difficulty " was suggested obiter in an early case as ' a sufficient though unlikely reason.' That the question was merely " practical and serious " was held sufficient in an early case,* influenced by the decision of Jordan v. Poillon, 77 N. Y. 518. The latter takes the extreme view that the case must " be a very plain one which authorizes a court to decide a question arising on motion to compel a party to take a convey- ance; and then it should be determined only with the consent of such purchaser." As a court of appeals de- cision this case naturally has had great weight, utterly as it ignores the theoretical effect of a judicial decision ; but it cannot be said that the purchaser's consent has really been requisite whenever an arguable question of law has arisen, nor that the court will ordinarily refuse to decide all but " very plain " cases. § 21. ■ Pure Question of Law. — When objections are all on points of law and the court can decide that title is good as matter of law, it should do so; for "if the 1. Wilmurt V. MoGrane, 16 A. D. 412. 2. Armstrong v. Wernstein, 2 Silv. Supm. 61. 3. Cleveland v. Burrill, 25 Barb. 532. 4. Argall v. Raynor, 20 Hun, 267. Pure Question op Law. 25 objections are not good in law, they are not objections affecting the validity of the title in any legal sense, and they alSord no excuse to the purchaser for refusing to complete his contract." ^ A pure question unaffected by any possible change of the facts out of which it sprang must at least be doubtful or evenly poised to justify a refusal to decide it.^ Such question ordinarily arises upon the construction of a written instrument or a statute. Most of the cases above cited have involved the construction of wills. When that is the situation, marketability can and should be determined in an action for specific performance.' So when marketability depends wholly upon the con- struction of a statute and of a decree thereunder. As the court of appeals well said : " When the court has carefully examined and deliberately decided a question, its decision becomes a part of the common law, and is binding upon it as well as upon all the other courts of the state. The possibility that it may, at some time in the future, when other parties are before it, disregard its own precedent and decide the same question, depending upon the same facts, in a different way, is so remote " that it should not preclude a decision even in the absence of interested parties.* In Matter of Evergreens, 47 N. Y. 216, the purchaser was content to obtain an adjudication on the merits. Although the question was whether the statute under which title was tendered had not been repealed, he did 5. Onderdonk v. Aekerman, 62 How. Pr. 318, afld. 92 N. Y. 539, suh nom. Mott v. Aekerman. 6. Soholle V. Scholle, 113 N. Y. 261, affg. 56 Super. 399, affg. 55 Super. 474; Chwatal v. Schreiner, 3 Misc. 192, affd. 148 N. Y, 683; Mygatt V. Maslen, 141 N. Y. 468; Hardenbergk v. McCarthy, 130 A. D. 538. 7. Danaher v. Hildebrand, 72 Misc. 240; Davidson v. Jones, 112 A. D. 254; Holly v. Hirsch, 135 N. Y. 590. 8. Ebling v. Dreyer, 149 N. Y. 460, rvsg. 79 Hun, 319. 26 Doubtful Questions of Law. not even argue that he should be relieved because of doubt. In Clute V. Eobison, 2 Johns. 595, arose the unusual situation of title under bounty acts pronounced doubt- ful by a commission appointed to investigate them and recognized by the parties as doubtful. The court held that a title not merely adjudicated but confirmed by statute was what the parties contemplated. § 22. Interests Not Represented. — It must be freely conceded, however, that the courts in a majority of recent cases have declined to decide even pure questions, not so very recondite at that, in the absence of interested parties.^ They have the authority of the court of appeals in Jordan v. Poillon, 77 N. Y. 518, for refusing to decide without assigning any reason ; and in the absence of any well defined policy outlined by the same court will doubt- less continue to avail themselves of that precedent from time to time. Fundamentally the reasons for such attitude are not flattering to the legal profession. There can be only two : Either mistrust of the court 's . own reasoning power, resulting in a fear that a decision on the merits would be wrong; or mistrust of the ability or integrity of counsel, resulting in a fear that the case has not been properly presented. This may seem an extreme statement, but the second of these reasons has been openly expressed by the court more than once,^° and not infrequently hinted at. 9. See also Power of Sale, § 261, for discussion of this subject in connection with that topic and for additional cases. 10. Heasty v. Lambert, 98 A. D. 177; Fisher v. Wilcox, 77 Hun, 209. It would perhaps be more profitable if the courts should dis- cipline transgressing attorneys instead of refusing to decide the eases alike of the honest and of the dishonest members of the bar. Fortunately there is evidence of a recent tendency in that direc- tion. See 5 757. Interests Not Represented. 27 That remaindermen under a will are not parties is a frequent excuse for refusing a judicial construction of the will.^^ This is especially so if the remaindermen are children and the controversy has been submitted — a situation suggesting bad faith to the judicial mind.^^ That parties who might be affected by the deed under examination are not in court has been held a sufficient reason for not construing it>^ That the question is real/* reasonable,^^ serious^" or grave " is an element of weight in determining the court to avoid its decision. Even a question of statutory construction may in like manner be avoided, although the courts have usually either gone part way in the construction;^^ or found it involved with some question of fact.^' 11. Hovey v. Chisholm, 56 Hun, 328; Marks v. Halligan, 61 A. D. 179; Knee v. Kuykendall, 6 S. R. 1; Salisbury v. Ryon, 105 A. D. 445; Downey v. Seib, 185 N. Y. 427, afEg. 102 A. D. 317; Argall v. Eaynor, 20 Hun, 267; Maekie v. Mackie, 90 Hun, 610. 12. Fisher v. Wilcox, 77 Hun, 209; Baumgrass v. Brickell, 7 S. R. 685; Armstrong v. Wernstein, 6 Supp. 148; Schreyer v. Arendt, 83 A. D. 335; Walgrove v. Douglass, 166 A. D. 901. But the court in Hardenbergh v. McCarthy, 130 A. D. 538, said the law was plain and held title marketable. 13. Altman v. McMillin, 115 A. D. 234, covenant against apart- ments; Remsen v. Wingert, 112 A. D. 234, afifd. 188 N. Y. 632, with- out opinion, easement of light; Timmermann v. Cohn, 204 N. Y. 614, rvsg. 146 A. D. 924, also 70 Misc. 327, exception from grant; Telix V. Devlin, 90 A. D. 103, description; Gilsow v. Schmidt, 156 A. D. 911, tenancy by the entirety. 14. Alkus V. Goettmann, 60 Hun, 470. ' 15. Beams v. Mela, 10 Supp. 429. 16. Hatt V. Hagaman, 12 Misc. 171; McDougall v. Dixon, 19 A. D. 420. 17. Landon v. Walmuth, 76 Hun, 271. 18. N. Y. Security & Trust Co. v. Schoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below; Hemmer v. Hustace, 51 Hun, 457, a%. 14 Civ. Proc. 254. 19. Palmer v. Morrison, 104 N. Y. 132, afiEg. 51 Super. 530; Abbott V. James, 111 N. Y. 673. 28 Doubtful Questions of Law. In the very early cases it seems not to have occurred to the courts to shirk the decision of a question of law arising upon written instruments even with a slight ad- mixture of fact — as that two contemporaneous instru- ments are to be construed as a single deed.^" § 23. Judicial Discretion. — The conflict between these two lines of cases has been recognized, though seldom discussed at length. It has been resolved into the fairly satisfactory conclusion that it rests in the discretion of the lower court whether or not to decide the question of law. If the lower court rules on the issue, the court of appeals will accept the lead and on appeal will decide the case on the merits.^^ § 24. Elements of Doubt. — Novel Question. — When there is no authority to guide the court upon the ques- tion of law raised by the purchaser, and the court in- clines against the view which would support the title, the title becomes unmarketable, as a doubtful title, with- out the necessity of an actual decision against its valid- ity. The following are instances: Compromise in be- half of an infant of an action to establish a will creating a life estate in real estate of infant's ancestor ; ^^ fore- closure decree after service by publication without proof of cause of action ; ^' acceptance of proceeds of sale by 20. Hayes v. Kershow, 1 Sand. Ch. 258. The two opinions in Jackson v. Edwards, 22 Wend. 498, also show that the court of errors did not hesitate to decide such question when the title de- pended upon it. 21. Kelso V. Lorillard, 85 N. Y. 177, affg. 8 Daly, 300; Matter of Baer, 147 N. Y. 348, affg. 87 Hun, 483. In the latter case the qualifying phrase " unless clearly wrong " is not repeated. 22. Dixon v. Cozine, 64 Misc. 602, affd. 134 A. D. 921, on opinion below, affd. 202 N. Y. 554, without opinion. 23. Lauder v. Meserole, 148 A. D. 738. Different Judicial Opinions. 29 committee of lunatic appointed without notice to lunatic personally.^* The court of appeals, some twenty-five years ago, re- marked obiter : " Whether in actions brought to en- force specific performance .* * * courts should deter- mine doubts respecting the title which depend solely on an unsettled question of law, and decree performance when the unsettled question is decided in favor of the validity of the title, seems not to have been definitely settled." ^^ So far as the " unsettled " question is a wholly novel one, there is still no controlling authority ; but there seems no sound reason why at least the rule of discretion applied to "difficult" questions should not be extended to novel questions. § 25. Different Judicial Opinions. — To be consistent with the weight of authority in the cases above cited in this section and the preceding one, any conflict of judi- cial opinion upon a legal question involved in the title sh.ould relieve a purchaser. If the court will not decide a new question of law, much less should it decide one complicated by erroneous or opposing decisions. Curi- ously enough the courts in this more difficult situation incline strongly to the correct theoretical course of dis- regarding the various excuses mentioned above, taking the bull by the horns and adjudicating the issue. In practically all cases the question arises in a court of first instance and the conflicting decision must be that of a co-ordinate or superior court. The general rule is that in spite of the court's conviction that the decision of a co-ordinate court was wrong, it makes title unmarketable.^^ 24. Taylor v. Klein, 47 A. D. 343, affd. 170 N. Y. 571, without opinion. 25 Hayes v. Nourse, 114 N. Y. 595. 26. Benson v. Cromwell, 26 Barb. 218; Paret v. Keneally, 30 Hun, 15; Fleming v. Burnham, 100 N. Y. 1; Ferris v. Plummer, 42 30 Doubtful Questions of Law. A single decision of an intermediate court opposed to a long established rule laid down by the court of last resort does not impair the authority of such rule.^' A carefully considered dictum by a superior court is sufficient to raise doubt in the lower court.^^ On the other hand where the court of appeals decision can be distinguished as applying only to the special language of the will construed, it will not be allowed by the ap- pellate division to cast doubt upon a well established rule of construction.^' , When the question reaches the court of last resort, the strong tendency is for that court to decide it correctly even at the expense of overruling the case that created the doubt. This course was pursued in Kinnier v. Eogers, 42 N. Y. 531,^" though without discussing the effect of doubt upon marketability. So in Bertles v. Nunan, 92 N. Y. 152,^1 Kip v. Hirsh, 103 N. Y. 565,^2 and Mott v. Ackerman, 92 N. Y. 539, the latter deciding a question upon which there had been " great differ- encfe of opinion in the courts." When the conflict arises upon the first appeal of the case itself and appears in opposing opinions written by judges of the lower appel- late court, the court of appeals while recognizing that reasonable doubt may be entertained upon the issue may nevertheless decide it upon the merits and require pur- Hun, 440; and see opinion of S. B. Strong, J., in Mills v. Van Voorhis, 23 Barb. 125. The effect of doubt upon marketability was wholly overlooked in Barnard v. Heydrick, 49 Barb. 62, al- though the judge could make up his mind between two conflicting precedents only after six pages of argument. 27. Mott V. Clayton, 9 A. D. 181. 28. Matter of Cavanagh, 37 Barb. 22; Felix v. Devlin, 90 A. D. 103. 29. Davidson v. Jones, 112 A. D. 254. 30. Affg. 55 Barb. 85, and overruling Quin v. Skinner, 49 Barb. 128. 31. Overruling Feely v. Buckley, 28 Hun, 451. 32. Disapproving McCahill v. Hamilton, 20 Hun, 388. Trifling Defect. 31 chaser to complete. ^^ It may also ignore such diversity of opinion.^^ The fairest course seems to be to admit that purchaser was justified in raising the question and relieve him from costs. '^ In several early cases the court of last resort adopted the attitude of recognizing the authority of a decision with which it did not agree, sustaining purchaser in his refusal to complete. ^^ When the judges of the court of appeals cannot agree among themselves they very properly pronounce the question doubtful.^' 4. Trifling Defect. § 26. Not every minute and critical objection will be allowed to discharge a purchaser. While he is entitled to all the property and title he rightfully expected to receive, yet in equity " if he gets substantially what he bargains for, he must complete." The court will weigh the object and inducement of the purchaser, and looking 33. Wiltsie v. Shaw, 100 N. Y. 191, a%. 29 Hun, 195. 34. In the ease of Post v. Weil, 115 N. Y. 361, the remarkable situation occurred that the five supreme court judges before whom the case had come upon the first two appeals, 8 Hun, 418, and 1 Supp. 807, were unanimous in the opinion that the premises were affected by a condition subsequent, that one judge of the court of appeals did not vote and one concurred in the result only; so that the conclusion reached after six pages of technical and rather obscure discussion, that the premises had been subjected to a covenant and not a condition, represented the views of exactly five judges, opposed by at least five. Yet no suggestion is made that such a situation might create a doubtful title. 35. Kip V. Hirsh, 103 N. Y. 565. 36. Jackson v. Edwards, 22 Wend. 498; Roome v. Philips, 27 N. Y. 357. 37. Abbott V. James, 111 N. Y. 673; Kilpatrick v. Barron, 125 N. Y. 751, affg. 54 Hun, 322. 32 General Principles. to the merits and substantial justice of each particular case, if the sale be fair, relieve or not from the purchase as the character of the transaction and the circumstances may appear to require.^ This doctrine has prevailed since the earliest cases; and the test, though variously phrased, has always been substantially the same: Whether vendee has been disappointed in the main ob- ject of his purchase ; whether the sale was fair, the title good, the correct quantity of land included in the boun- daries and the description substantially true ; ^ whether the variation in description is only trifling ; whether the encumbrance, though not removable, is trifling and com- pensable; whether the reservation is merely nominal, as a peppercorn rent ; ^ whether it can be rationally imagined that vendee would, rather than accept compen- sation, have refused the contract, as in case of a $1,000 mortgage on property worth $50,000;* whether the ir- regularities have become immaterial by entry of a judgment binding upon all who were entitled to com- plain;^ whether the outstanding interest is "technical and worthless ; ' '" whether it appears that injury would result therefrom.'' An irregularity not rendering judgment void does not ordinarily make title unmarketable;* but where the de- fect makes the judgment voidable, the purchaser may not be required to complete.' A lien, the discharge of which is provided for out of the purchase money on closing, is no objection in 1. Riggs V. Pursell, 66 N. Y. 193. 2. King V. Bardeau, 6 Johns. Ch. 38. 3. Winne v. Reynolds, 6 Paige, 407. 4. G-uynet v. Mantel, 4 Duer, 86. 5. Noble V. Cromwell, 26 Barb. 475, affd. 3 Abb. Dec. 382. 6. Leggett v. Mutual Life Ins. Co., 53 N. Y. 394 (dictum). 7. Mead v. Martens, 21 A. D. 134 {dictum). 8. Union Trust Co. v. Driggs, 62 A. D. 213. 9. Lauder v. Meserole, 148 A. D. 738. Stake Decisis. 33 equity;^" nor is one which would immediately revest, as inchoate dower in vendee's wife.^^ A merely apparent encumbrance, though mentioned in the deed tendered, is no objection if it is not in fact enforcible.^^ The fact that the interest affected is very small, as 1/528, does not relieve an objection going to the fee.^' A possible tenancy by curtesy in one fifth of the prem- ises vested in a man unheard of for twenty-three years; who, if alive, would be seventy- two years old, is also too substantial a defect to be ignored." In the absence of proof of the materiality of the de- fect, the court in Riggs v. Pursell, 66 N. Y. 193, 74 N. Y. 370, refused to assume that a restrictive covenant was injurious. Vendee was allowed to show injury by affidavit on his motion for relief from judicial sale. It has been held in a later case that on private sale the existence of the servitude would be regarded prima facie as injurious.^^ 5. Stare Decisis. § 27. An adjudication upon the precise question at issue in a title, although made by a court of first instance upon unsatisfactory reasoning and still subject to rever- sal upon a pending appeal, must be regarded as the law of the case as between vendor and vendee.^ After such a decision has stood for twenty-five years, has been fol- lowed without question and cited as authority by text writers, it will be accepted by the court of last resort as 10. Lenihan v. Hamann, 55 N. Y. 652, affg. 14 Abb. Pr. N. S. 274. 11. Watson V. Church, 3 Hun, 80; Knight v. Moloney, 4 Hun, 33. 12. Suydam v. Dunton, 84 Hun, 506. 13. Smith V. Wells, 69 N. Y. 600. 14. Cerf. V. Diener, 210 N. Y. 156, rvsg. 148 A. D. 150. 15. Scudder v. Watt, 98 A. D. 228. The attempt to distinguish Eiggs V. Pursell, supra, is unintelligible. 1. Jackson v. Edwards, 22 Wend. 498, 516. 34 General Principles. haying settled the law.^ Where the question is one af- fecting real estate in general, as in regard to the status of the old Dutch roads, a decision by the court of last resort becomes a rule of property and is not shaken by a subsequent opinion to the contrary in an intermediate court.^ Where the issue has been raised and adjudicated upon the same title, though between different parties, the prior decision has almost the force of res adjudicata; it is conclusive as to all litigants and controversies pre- senting the same question.^ Even though plainly wrong, it should be respected ; the burden of correcting it should not be thrown upon vendee.^ Where a court is called upon to construe a statute it may do so with confidence that other courts will in the future accept its interpretation as binding. Although certain claimants may not be estopped by the judgment, the question comes under the rule of stare decisis and ceases to be doubtful.^ An intermediate court may in its discretion decline to pass upon the construction of a will. " Even on the rule of stare decisis this court's decision would not be binding on the court of appeals." ' That such discre- tion is sometimes better than exuberant valor is illus- trated by Merritt v. Lambert, 7 Paige, 344, where the chancellor, scornfully disregarding a supreme court precedent and an ejectment suit brought in reliance upon its authority, compelled vendee to accept a title 2. Mead v. Mitchell, 17 N. Y. 210. 3. Mott V. Clayton, 9 A. D. 181. 4. Sloane v. Martin, 145 N. Y. 524, affg. 77 Hun, '249; Chase v. Chase, 95 N. Y. 373; Hartigan v. Smith, 19 A. D. 173; Reformed P. D. Church v. Madison Av. Bldg. Co., 214 N. Y. 268. 5. Murphy v. Fox, 128 A. D. 534, followed 198 N. Y. 509, without opinion. 6. Wronkow v. Oakley, 133 N. Y. 505, rvsg. 64 Hun, 217. 7. Fisher v. Wilcox, 77 Hun, 209. Public Policy. 35 of which he was afterwards deprived in the ejectment suit.^ The court of last resort is always at liberty to draw an " apparent and substantial " distinction between the- case at issue and an earlier decision that has embarassed the lower courts, and to disregard the reasoning and; generalizations of the earlier case.' 6. Public Officer. § 28. The failure of a public officer to perform his duty does not impair the right of an individual. When papers are required to be filed they will be considered to have been filed by the person whose duty it was to file them and who handed them to the ofllcer required to receive them although the latter failed to file same.^" A public officer is presumed to have performed his duty.ii His failure to comply with a formal detail directed under the recording act, such as noting the time of re- ceipt, cannot deprive the owner of the benefit of the record. ^^ 7. Public Policy. § 29. Foreign Corporation. — A foreign corporation is allowed by comity to exercise its powers in New York except so far as they may be against the public policy of this state. All actions prohibited to domestic cor- 8. Merritt v. Lambert, Hoff. 166. The precise decision was that a receiver of vendee's property be appointed. 9. Holly V. Hirsch, 135 N. Y. 590, rvsg. 63 Hun, 241. It seems better to express downright disagreement with the earlier case than to attempt, as in this instance and as so frequently happens^ a distinction without a difference. 10. rink V. Wallach, 109 A. D. 718, rvsg. 47 Misc. 247; Alvord V. Beach, 5 Abb. Pr. 451. 11. Thorn v. Mayer, 12 Misc. 487. 12. Same. 36 General Peinciples. porations are not against public policy ; and although a ■domestic bank may not buy real estate on a stranger's foreclosure, no rule of public policy prohibits a foreign bank from doing so.^^ There is no public policy restrict- ing the amount of real estate that may be acquired by a foreign business corporation.^* § 30. Highvyay. — In 1890 it was held by the court of appeals ( second division ) that the reservation by vendor of the fee of a road bounding the premises conveyed would conflict with public policy.^^ Since then such reservations have become so common among parties developing surburban tracts that it may be doubted whether public policy could be successfully invoked against them. §31. Husband and Wife. — When husband and wife have actually separated, public policy does not forbid a condition that the wife shall not rejoin the husband upon penalty of losing her estate. ^^ An uncontested divorce for non-support, with alimony, may be accompanied by a general release of dower and forms good consideration for same." § 32. Remaindermen. — Since contingent remainders have been made alienable by statute, contingent remain- dermen ought to be inade parties to actions affecting their interests. The rule authorizing foreclosure with- out them will not be extended.^^ 13. Alward v. Holmes, 10 Abb. N. C. 96. 14. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576, xvsg. 72 Hun, 18. 15. Matter of Ladue, 118 N. Y. 213, rvsg. 54 Super. 528. 16. Wright V. Mayer, 47 A. D. 604. 17. ScMesinger v. Klinger, 112 A. D. 853. 18. New York Security & Trust Co. v. Schoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below. Constitutional Law. 37 The rule that makes a conveyance by a fiduciary to hiipself voidable must as a matter of public policy yield to the- rule protecting an innocent purchaser for value. A remainderman whose estate did not vest until after the title had been acquired by the innocent purchaser still has recourse against the trust f und/^ but not against the land. 8. Constitutional Law, § 33. A constitutional question can scarcely be raised directly on an issue of marketability. It can be and often is raised indirectly and is decided as a matter of course by whatever court has cognizance of the case.^ From an academic point of view it is incredible that the deliberate action of the legislature, with the approval of the governor, can ever be so obviously beyond the pale of constitutional authority that the reasonable man, to whose judgment the courts defer on questions of mar- ketability, would feel he could disregard same without fear of litigation. Such a situation presupposes that the reasonable man's opinion is sounder than that of his chosen representatives in government; and that even the hungry claimant will not venture to base a lawsuit upon a duly enacted statute. Once accepting this latter hypothesis, the court is sure to run into a reductio ad absurdum; — as for instance where it decides in 1870 that an act directing the sheriff to make certain sales is unconstitutional — so plainly ineffectual that title is not even rendered doubtful — and yet, deciding in 1877 that an almost identical statute is valid, describes its former decision as " close. "^ 19. Weintraub v. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246. On the facts it is difficult to see how any purchaser could be innocent. 1. The propriety of deciding constitutional questions in this casual fashion is discussed by the author in The Judicial Veto, chap. 2. 2. Gaskin v. Meek, 42 N. Y. 186; Kerrigan v. Force, 68 N. Y. 381. 38 Constitutional Law. Or again holds, contrary to the rule in other states, that municipalities may not by filing the map of a pro- posed improvement, limit the damages to existing struc- tures — really a complicated question of public policy.^ The reasonable man's point of view does not seem ever to have been forcibly presented to the courts. § 34. Contruction. — A statute not prohibited by the constitution is constitutional. So held of the title registration act.* § 35. Particular Subjects. — Special Sales. — The legislature acting as parens patriae has power to author- ize the sale of the property of persons under disability ^ and charitable cestuis.^ A provision for investment of proceeds until termina- tion of the life estates is sufficient protection for persons not in esse.'' The procedure on such sales may be left to the court. It will be assumed that the court will order sale in such manner, whether for instance in one plot or in separate parcels, as would be most beneficial, and will provide for the proper distribution of the funds.* Where property is held in trust, and the original trustee is unable to act, the legislature may direct the deed to be made by anybody ; ' or may even transfer it directly by statute.^" , 3. Forster v. Scott, 136 N. Y. 577. See opinion below, 60 Super. 313. 4. Barkenthien v. People, 212 N. Y. 36. 5. Leggett v. Hunter, 19 N, Y. 445, affg. 25 Barb. 81. 6. Matter of Trustees of New York Protestant Episcopal Public School, 31 N. Y. 574. 7. Matter of Field, 131 N. Y. 184. 8. Ebling v. Dreyer, 149 N. Y. 460, rvsg. 79 Hun, 319. 9. Matter of Bull, 45 Barb. 334. 10. Matter of Trustees of New York Protestant Episcopal Pub- lie School, 31 N. Y. 574. Dub Process of Law. 39 Even though the owners are unfler no disability, the legislature may authorize a sale of premises on the initia- tive of any person interested for the purpose of appor- tioning taxes and assessments.^^ But a statute authorizing the sale of private property for private use is unconstitutional; and where no dis- ability or public purpose is shown, the sale does not pass marketable title.^^ § 36. Particular Clauses. — Local and Private Acts. — A local or private act may embrace only one subject and that subject must be expressed in the title. An act directing judicial sales in a certain county to be made by a referee instead of by the sheriff is local. It may not be entitled, " An act in relation to the fees of the sheriff of the city and county of New York and to the fees of referees in sales in partition;"^' but may be entitled " An act relating to the expenses of judicial sales in the county of Kings." ^^ It is conceded in the latter case that the distinction is not marked, but the court preferred to strain every intendment in favor of constitutionality. An escheat act is private. Its purpose is not expressed by the title, " An act to release the interest of the people of the state of New York in certain real estate to C."^^ § 37. Due Process of Law. — A statutory provision that no compensation shall be paid for a building erected within the limits of property proposed to be taken for a 11. Jackson v. Babcock, 16 N. Y. 246; Brevoort v. Grace, 53 N. Y. 245, 255 (dictum). 12. Powers v. Bergen, 6 N. Y. 358; Brevoort v. Grace, 53 N. Y. 245. 13. Gaskin v. Meek, 42 N. Y. 186, affg. 55 Barb. 259. 14. Kerrigan v. Force, 68 N. Y. 381, affg. 9 Hun, 185; Sproule V. Davies, 171 N. Y. 277, affg. 69 A. D. 502. 15. McCabe v. Kenny, 52 Hun, 514. An extremfely large pro- portion of escheat acts are defective. 40 Constitutional Law. higtway as shown on an official map filed by a munic- ipality is unconstitutional and void, because it deprives an owner of property. It is therefore no encumbrance on title.^® But where a public right of way is furnished in place of a private one, there is no actionable damage and hence no compensation need be made for impair- ment of the private right of way." The legislature has power to validate irregular fore- closure sales. No vested right is impaired thereby nor any party injured.^* Service of a non-resident infant without newspaper publication, if so authorized by statute, is due process.^* § 38. Obligation of Contracts. — The lien of municipal bonds on property " specifically pledged " under a con- demnation act continues so long as any of said bonds re- main outstanding. It cannot be extinguished by legis- lation, for to do so would be to impair the obligation of a contract.^" The lien of tax sale certificates may be extinguished by a law providing that sales more than eight years old on which no leases have been issued shall be cancelled unless within six months the holder take steps to enforce the issuance of such lease. Such a law is in effect a statute of limitations ; it does not impair the contract. ^^ § 39. ^axes and Assessments. — A street opening as- sessment is levied for a public improvement. The legis- 16. Forster v. Scott, 136 N. Y. 577, a% 60 Super. 313; German- American Real Estate Title Guarantee Co. v. Meyers, 32 A. D. 41. 17. Fearing v. Irwin, 55 N. Y. 486, affg. 4 Daly, 385. 18. Wallace v. Feely, 10 Daly, 331, a£Ed. 88 N. Y. 646, without opinion. 19. Matter of Field, 131 N. Y. 184. 20. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, rv^g. 3 Lans. 429. 21. Doody V. Hollwedel, 22 A. D. 456. Municipal Grants. 41 lature has power to fix the assessment district, and levy a tax for the amount expended with interest. ^^ The ratio of assessment to benefit is a question of fact de- terminable by the legislature and not open to review. All the taxable owners are entitled to is notice and hear- ing. ^^ The sufficiency of such notice to be given is for the legislature to determine, as is the administrative method of executing the collection of assessments.^* § 40. Eighwuys. — The legislature has supreme con- trol over highways and may exercise it through a com- mission. No proceeding is prerequisite to closing a street except the filing of a map as provided by statute.^^ § 41. Municipal Grants. — A city is forbidden by the constitution to endow benevolent institutions. It may not do so indirectly by authorizing a hospital to sell the 'premises leased from the city and apply the proceeds to its own use.^^ 22. Lang v. Kiendl, 27 Hun, 66; Spencer v. Merelaant, 100 N. T. 585, affd. 125 U. S. 345. 23. Same. 24. Matter of Trustees of New York Protestant Episcopal Pub- lic School, 31 N. Y. 574. This probably does not mean to decide that in an extreme case a land owner may not contend that the notice was so inadequate as to amount to the denial of an oppor- tunity to get a hearing. 25. Fearing v. Irwin, 4 Daly, 385, affd. 55 N. Y. 486. 26. Mount Sinai Hospital v. Hyman, 92 A. D. 270. CHAPTER III. PRIVATE SALES. 1. Contract. § 50. Intent. — Generally. — In a private contract for the purchase and sale of real estate, the parties usually intend that vendee shall receive a marketable title in fee simple.^ It was early held that a contract for a deed sufBcient to vest title meant the legal estate free and tiear of all valid liens and encumbrances whatsoever.^ And under a contract general in its terms purchaser may insist upon a good, valid, unencumbered title.' A dictum in Beading v. Gray, 37 Super. 79, suggests that the true intent of the parties would best be carried out by making vendor responsible only for such encum- brances as were liens at the date of the contract, and requiring vendee to take subject to those accruing later ; but no case of private, as distinguished from judicial, sale seems ever to have been decided on that principle A contract for the house. No. 503 West 47th St., was held to mean the house and lot so designated, not build- ing materials only as vendor contended.* The bare contract of sale is satisfied by a quitclaim.^ It imposes no obligation to execute full covenants and 1. Taylor v. Chamberlain, 6 A. D. 38; Wallach v. Riverside Bank, 206 N. Y. 434, affg. 119 A. D. 238. 2. Jones v. Gardner, 10 Johns. 266. 3. Guynet v. Mantel, 4 Duer, 86. 4. Stone v. Thaden, 16 Daly, 280. 5. Van Eps v. Schenectady, 12 Johns. 436; Penfield v. Clark, 62 Barb. 584. (42) Intent. 43 warranty.^ Nor does a contract for a " good warranty deed " require a covenant against encumbrances.'' A contract for ten lots does not mean eight lots plus the undivided half of four others.^ § 51. Divisible Contract. — All the land sold to the same individual on a single occasion is not necessarily the subject of a single indivisible contract. This is particularly true of auction sales. Where, for instance, plaintiff bought at auction from defendant lots No. 1 to 6 and 9 to 13 in one allotment and twenty-one other lots in a second allotment, having bid separately on each lot, made separate payments and received separate re- ceipts therefor, he may not recover his entire deposit on proving defect of title to three lots.^ A purchase of several parcels as one plot does not be- come divisible against vendee's wish because said parcels are physically separable, lying upon opposite sides of a street, and having been previously separated in owner- ship. Wliere the title to one proves defective, vendee cannot be compelled to take the other with compensa- tion for the defective parcel.^" § 52. Knowledge. — A vendee who contracts with ref- erence to an existing encumbrance, retaining part of the consideration until its removal, may not afterwards rescind the contract upon the ground of the existence of such encumbrance, at least until he has given vendor a reasonable time, after due notice, to remove same.^^ Nor will equity permit vendee, who knowing a variety of defects had agreed orally to take subject to same but 6. Palmer v. Hudson Valley Railway Co., 134 A. D. 42. 7. Garlock v. Lane, 15 Barb. 359. 8. Eoy V. Willink, 4 Sand. Ch. 525. 9. Van Eps v. Schenectady, 12 Johns. 436. 10. Gibert v. Peteler, 38 Barb. 488, approved 38 N. Y. 165. 11. Ellsworth V. Cuyler, 9 Paige, 418. 44 Contract. had provided in the written contract simply for good and lawful deed, to insist afterwards upon a perfect title. In such case where there is no defect of pecuniary importance, vendor may have specific performance with- out making any compensation.^^ Where the contract permits an encroachment of one foot, it excludes anything greater; and a two-foot en- croachment is objectionable.^^ A contract whereby ven- dee agreed not to object to a variance from the record title as shown by T's survey as in possession was not fulfilled by a lot with a building which encroached be- yond what was shown by T's survey." A contract for a lot with improvements, made with reference to the facts disclosed by survey, will be con- strued in the light of what the survey shows. Where the improvement was a two-story brick building with a small structure in the rear, it was held no objection that the rear extension depended on the adjoining prem- ises for its easterly wall.^^ The contract may in itself disclose that the parties in- tended the conveyance of a better title than vendor then held. In such case the court will not decide the merits of vendor's original title. ^^ § 53. Implied Warranty. — Fee. — A covenant to ex- ecute a good deed implies an undertaking that vendor 12. Winne v. Keynolds, 6 Paige, 407. The subject matter of the contract was a Van Rensselaer lease in fee, and the defects were — reservations of minerals and water rights, an annual rent of one pound of wheat and a pre-emptive right of purchase. There was no evidence of minerals or water on the premises, and these reser- vations and the rental were pronounced trifling. The right of pur- chase was held to be no substantial pecuniary injury. 13. Heymann v. Steich, 134 A. D. 176, affd. 201 N. Y. 578, with- out opinion. 14. Steckler v. Godillot, 17 Misc. 286. 15. Cantor v. Robinson, 196 N. Y. 546. 16. Clute V. Robison, 2 Johns. 595. Implied Wareanty. 45 has and will convey a good title. This is based on the doctrine of implied warranty applicable to all sales, and the rule is the same at law and in equity.^^ The implied warranty continues while the contract is executory and its breach furnishes vendee ground for recovering his deposit and expenses as well as a defense to vendor's claim for damages. On delivery of the deed the implied warranty is extinguished and thereafter the parties are affected only by such express covenants as the deed may contain.^^ A provision in the contract for covenant against gran- tor's acts only does not exclude the implied warranty; but it shows vendor's intention not to assume respon- sibility for the title and limits vendee's recovery to " nominal damages." ^' Nor does a provision for ven- dor's giving a quitclaim in itself exclude such warranty.^" § 54. Lease. — The same doctrine is Eissumed to apply on a contract for sale of a lease in fee,^^ but not a tax lease.^^ 17. Burwell v. Jackson, 9 N. Y. 535; Wheeler v. Tracy, 49 Super. 208; Smith v. Eiggs, 2 Duer, 622. 18. Penfield v. Clark, 62 Barb. 584; Leggett v. Mutual Life Ins. Co., 53 N. Y. 394. 19. Same. 20. Wallach v. Riverside Bank, 206 N. Y. 434, affg. 119 A. D. 238. 21. Winne v. Reynolds, 6 Paige, 407; Drake v. Shiels, 7 Supp. 209. 22. Boyd v. Sehlesinger, 59 N. Y. 301; Bensel v. Gray, 62 N. Y. 632, affg. 38 Super. 447. On the second trial of this case the court of appeals held that the phrase — tax leases ' ' with all and singular the premises therein mentioned," raised the usual implied coven- ant of title for the term of the lease. 80 N. Y. 517. The sugges- tion on the first trial that if the lease were wholly void there would be no consideration is puzzling; it seems directly at vari- ance with the theory on which the appeal was dismissed. 46 Contract. § 55. Right, Title and Interest. — Where the parties know that vendor's title is doubtful, no covenant is im- plied. It sometimes happens that vendee has substantial reasons for accepting a quitclaim from vendor, and in such case he is held to his bargain even though title fails completely.^^ Nor is it any evidence of bad faith that executors convey a doubtful title at a low price.^* The following memorandum: — For value received I do hereby sell to B my one sixth interest in the S estate, corner of and A Streets, Rochester, acknowledging |5 as part of the price which is |5,000, — signed by ven- dor only, was construed as belonging within this cate- gory of contracts.^^ And tax leases, according to an ex- tended opinion of the court of appeals, are on the same footing. ^^ The purchase of a railroad right of way was also so construed.^' The terms of a foreclosure sale described a plot of upland " together with all right, title and interest of the party of the first part in and to the land in said creek in front of and adjoining said premises to the center thereof." The purchaser of separate lots of made land lying entirely in the bed of the creek was not allowed to complain of the title.^* § 56. Perf onnance. — A contract for a good and suf- ficient deed of premises is fulfilled only by conveyance 23. Bowen v. Bell, 20 Johns. 338; Granger v. Olcott, 1 Lans. 169; Emrich v. White, 102 N. Y. 657. 24. Osgood V. Franklin, 2 Johns. Ch. 1, affd. 14 Johns. 527. 25. Bunomo v. Schlitzer, 198 N. Y. 584. 26. Boyd v. Schlesinger, 59 N. Y. 301. But see Bensel v. Gray, 62 N. Y. 632, holding that a wholly void lease is no consideration. 27. Hicksville, etc., E. R. v. Long Island R. R., 48 Barb. 355. 28. Van Rensselaer v. Bull, 17 Supp. 117, affd. 133 N. Y. 625, on opinion below. Performance. 47 of a marketable title. ^^ This simple proposition seems reasonably obvious, but it was not established without a struggle. Almost a century ago the supreme court held in Gazley v. Price, 16 Johns. 267, and Fuller v. Hubbard, 6 Cow. 13, that such a contract meant merely that the grantor, executing a deed correct in form, must convey whatever right he had in the premises ; and this decision was speedily followed by a dictum in the same court to the effect that a contract for a good warranty deed does not mean that vendor will give good title.^" Chancery replied a few years later with a dictum that the mere giving of a warranty deed, where the grantor has no title to the land, or where his title is imperfect, is not enough; it must be a deed good and sufficient, both in form and substance, to convey a valid title. ^^ When the question again came before the supreme court, a majority of the judges repudiated Gazley v. Price and Parker v. Parmele (which have since been referred to as overruled ) , and held that the bare deed without title did not satisfy a contract for " a good and sufficient warranty deed of conveyance in the law in fee simple."^^ Since then the rule has not been seriously questioned. In the later cases it has been applied more broadly to every contract for a proper conveyance for conveying the fee simple.^^ It is not necessary that vendor should execute any deed at all where he not being the owner tenders a deed executed by the true owner.^* But if his contract calls 29. Judson v. Wass, 11 Johns. 525; Pomeroy v. Dniry, 14 Barb. 418; Coggshall v. Steele, 22 W. D. 537; Fletcher v. Button, 4 N. Y. 396, affg. 6 Barb. 646; Hill v. Ressegieu, 17 Barb. 162; Story v. Conger, 36 N. Y. 673. 30. Parker v. Parmele, 20 Johns. 130. 31. Everson v. Kirtland, 4 Paige, 628. 32. Carpenter v. Bailey, 17 Wend. 244. 33. Traver v. Halstead, 23 Wend. 66; and cases cited above. 34. Lighten v. Syracuse, 48 Misc. 134, affd. 112 A. D. 589, rvsd. 48 Contract. for a warranty deed, it requires his personal warranty in addition to an instrument conveying title.^^ It is sufficient if liaving conveyed to A by warranty deed he tenders a deed froin A, for his warranty to A will enure to A's grantee. ^^ Where the contract required the ven- dor S " to cause to be executed a good warranty deed," it was held satisfied by a warranty deed from A the owner alone.^'' It is said obiter in Miner v. Hilton, 15 A. D. 55, that a contract to ' ' execute or cause to be ex- ecuted a proper deed containing a general warranty," requires vendor's warranty unless something appears to the contrary in the contract. Where vendee independently purchases the fee from the true owner, vendor cannot take advantag^^ of such purchase to help out a defective title tendered by him; the title so acquired by vendee is hostile to vendor's and does not aid it.^* Many of the same principles underlie the cases on Tender,^^ which should be examined in connection with this section. § 57. Merger. — ^Acceptance of a deed terminates the contract. The contract is said to be merged in the deed, the covenants of which thereafter alone regulate the relations of the parties. Not only the implied warranty of the contract but also its express covenants are at an end. So held where the^re was a variance in acreage,^" 188 N. Y. 499, on other grounds; Sage v. Ranney, 2 Wend. 532; Mayer v. McCune, 59 How. Pr. 78; Walter v. DeGraaf, 19 Abb. N. C. 406; Macdonald v. Bach, 51 A. D. 549, affd. 169 N. Y. 615, on opinion below. 35. Same ; Henretty v. McGuire, 6 W. D. 393 ; James v. Burchell, 82 N. Y. 108; Bigler v. Morgan, 77 N. Y. 312. 36. Tanzer v. Bankers' Land & Mortgage Cpn., 159 A. D. 351. 37. Scott V. Thorp, 4 Edw. 1. 38. Bensel v. Gray, 80 N. Y. 517, affg. 44 Super. 372. 39. Post, ^ 61-66. 40. Houghtaling v. Lewis, 10 Johns. 297. Independent Covenants. 49 a tax, and where certain covenants were omitted from the deed.*^ The rule of caveat emptor then applies. ^^ An exception was made where executors sold at auc- tion with the provision that all taxes, assessments and liens would be allowed out of the purchase money, and delivered a deed with covenant against grantors' acts only.« § 58. Waiver. — Vendee may also waive his contract rights. Where he knew at the time of his purchase that the premises were subject to mortgage, but had taken possession and continued for three years after the clos- ing date to make payments on account and had removed several buildings from the premises, he may not sue to recover his payments.*^ The sale and removal of a bookcase, or as the court generalizes, "fixtures or other portions of the free- hold," without having taken possession, is not a waiver on vendee's part of defects in the title.*' Nor can a vendor who before tender has incapacitated him- self from performance, by not reserving a stipulated right of way, claim waiver by vendee.*® 2. Covenants of the Contract. § 59. Independent. — ^When the contract provides for payment of the purchase price in instalments on fixed dates the obligations of the parties are independent. The vendee is bound, regardless of the condition of the title, to make all payments which he has agreed to make 41. Carr v. Roach, 2 Duer, 20. 42. Burwell v. Jackson, 9 N. Y. 535. 43. Alexander v. Greacen, 36 Misc. 526, rvsg. 36 Misc. 133. 44. Caswell v. Black River Cotton etc. Co., 14 Johns, 453. The court remarked ohiter that justice could be done in equity. 45. Kountze v. Helmuth, 140 N. Y. 432, affg. 67 Hun, 343. 46. Eddy v. Davis, 116 N. Y. 247, affg. 23 W. D. 468. 50 Covenants of the Contract. in advance of the closing date.^ The existence of a mort- gage is no excuse for non-payment of an instalment, for the vendor is not bound to remove the encumbrance until the closing date, and he may then be able to do so.^ Al- though the mortgage is substantial and the premises are also subject to taxes, still if the liens are less than the balance payable, vendee may not speculate on vendor's financial condition, but must pay the early instalments as they accrue and tender the last one on the closing date.^ The early cases had no hesitation in holding that even a conveyance of the premises by vendor to a third person did not excuse the performance by vendee of his inde- pendent covenant to continue his payments; they as- sume that vendor may still be able to deliver a proper conveyance on closing.^ Still more extreme is a case where vendor had been foreclosed ; ^ and one where ven- dor's title was denied in whole and as to various parcels alleged to be held adversely.^ The form of contract imposing on vendee the bur- den of paying under circumstances so precarious for many years went largely out of vogue, and the forego- ing cases have never been specifically overruled. The later cases have held that where only a single payment remains to be made on receipt of which vendor must convey, in other words where the covenants have be- come mutual, vendee may, if vendor loses title, treat the contract as rescinded, proving at his own risk that ven- dor was unable to perform. That was really the situa- 1. Harrington v. Higgins, 17 Wend. 376. 2. Greenby v. Cheevers, 9 Johns. 126 ; Ellis v. Hoskins, 14 Johns. 363. 3. Shepman Mortgage etc. Cpn. v. Sussman, 147 A. D. 25. 4. Robb V. Montgomery, 20 Johns. 15; Van Rensselaer v. Miller, Lalor's Supp. 237. 5. Van Allen v. Humphrey, 15 Barb. 555. 6. Clarke v. Hughes, 13 Barb. 147. ' Mutual Covenants. 51 tion in Burwell v. Jackson, 9 N. Y. 535, where vendor was foreclosed, although the opinion treats the first pay- ment as an independent obligation. The distinction between independent and mutual covenants does not seem important enough to justify the belief that the old strict cases would now be literally followed.'' It may well happen, however, that vendor's conveyance to a third party is in recognition and not in repudiation of his contract. In such case the decision that he is not in default is clearly correct.^ § 60. Mutual. — When all the remaining obligations of both parties are to be performed on the same day, the covenants, whether previously independent or not, become mutual.^ Vendee is not required to make the last payment tefore demanding the deed, as stated obiter in Clarke v. Hughes, 13 Barb. 147; and even though the contract literally would compel that course, it will be construed as imposing simultaneous obligations. Ven- dee's mere tender therefore is sufficient to require ven- dor on his part to tender a proper deed, so that con- sideration and conveyance may be exchanged at the same moment.^" When the covenants remain in force after the clos- ing date they are concurrent and mutual.^^ Vendor may also retain possession until payment of the consideration.^^ ' 7. See Tonga v. Newell, 16 A. D. 500; Alpern v. Farrell, 133 A. D. 278. 8. Tanzer v. Bankers' Land & Mortgage Cpn., 159 A. D. 351. 9. Smith V. MeCluskey, 45 Barb. 610; Eddy v. Davis, 116 N. Y. 247; Higgins v. Eagleton, 155 N. Y. 466; Ewing v. Wightman, 167 N. Y. 107. 10. Glenn v. Rossler, 156 N. Y. 161, a%. 88 Hun, 74. 11. Booth V. Milliken, 127 A. D. 522. 12. Teller v. Schnlz, 123 A. D. 883. This case seems to decide that the somewhat complicated process of moving vendor's house- 52 Tender. In James v. Burchell, 82 N. Y. 108, affg. 7 Daly, 531, the contract required vendee to spend |60,000 building houses on the premises before the closing date, when he was to receive a full covenant and warranty deed; it also contained a covenant of seizin by vendor. ■ Im- mediately after signing same, vendor conveyed to F. It was held that he had no cause of action against ven- dee, who refused to erect the buildings, because ven- dor's covenant of seizin was mutual and dependent with vendee's covenants and he had broken same by his conveyance. 3. Tender. § 61. When Necessary. — Yendor. — It is the vendor's duty to prepare a deed adequate to pass title in accord- ance with the contract and to tender same duly executed on the closing date.^ Where the title is encumbered,^ as by an \inpaid assessment,^ or an open judgment,* the tender is ineffectual. If the encumbrance objected to by vendee is only apparent, as an abandoned right of way, the tender is valid, even though the deed purports to make the premises subject to the supposed easement.^ Eeadiness to perform is not sufficient to put the ven- dee in default. Where a defect in title, as a dower right, exists, the vendor must not only arrange for the execu- tion of a proper instrument to release same, but must actually tender to vendee such instrument duly ex- ecuted.^ Still more clearly is the vendor in default when hold furniture need not begin until his receipt of the last payment. The time which would have been necessary for vendor to sur- render possession was, however, no greater than is comprehended within the meaning of " forthwith." 1. Stone V. Lord, 80 N. Y. 60. 2. Jerome v. Scudder, 2 Robt. 169. 3. Molt V. Baumann, 65 A. D. 445; Towle v. Jones, 1 Robt. 87. 4. Delavan v. Duncan, 49 N. Y. 485. 5. Suydam v. Dunton, 84 Hun, 506. 6. Moir v. Flood, 66 A. D. 544. Vendor's Duty. 53 the record shows open judgments against himself, open mortgages on the premises and title in a third party.^ i If vendee insists upon the discharge of liens upon closing, he is entitled to have title cleared, and vendor may not rely upon an offer to allow same out of the price as a tender sufficient to defend an action at law for vendee's deposit.^ The vendee's taking possession does not excuse vendor from discharging liens, or permit him to throw upon vendee the burden of discharging them out of the pur- chase price.' Where the vendor invokes the immediate action of equity by injunction, he must show " perfect " title — or at any rate his title must be in condition to pass pur- suant to the contract.^" In a partition suit the vendors may not rely on written consents while waiting ten months before actually procuring the instruments neces- sary to clear the title; such delay excuses a purchaser, especially where the property has meanwhile depre- ciated." When the consideration is payable by instalments, the covenants, at first independent, become mutual on the date fixed for the last payment. The vendor cannot thereafter enforce the vendee's obligation until he has 7. Reeder v. Schneider, 3 T. & C. 104. The head note to this case as reported in 47 How. Pr. 379, is misleading. Where time is not of the essence, the vendor may be allowed to enforce the con- tract by making proper provision to comply with all its require- ments. A court of equity is competent' to protect the vendee un- til title passes. 8. Mandel y. Hess, 107 Supp. 766; Zom v. McParland, 11 Misc. 555; Berger v. Crist, 121 A. D. 483. 9. Towle V. Jones, 1 Robt. 87. 10. Baldwin v. Salter, 8 Paige, 473. The court remarks ohiter that specific performance may be decreed if the objectionable mortgage is removed by the time the decree is entered. 11. Jackson v. Edwards, 22 Wend. 498. 54 Tendee. tendered marketable title.^^ After the agreed date for the last payment has passed, the vendee may on notice fix a day for closing when vendor must be prepared to complete. It would seem, however, that where vendee presents an instrument for execution, vendor should even at law have reasonable time for inspecting and ex- ecuting same — perhaps as much as five days.^^ Where the vendee is in default, tender by the vendor on the trial of an action to enforce his lien is suflficient." § 62. Vendee. — It is the vendee's duty to tender pay- ment at the appointed time. He is not excused from doing so by apparent lack of marketable title in the ven- dor, as where the property is in the name of a third per- son,^^ or subject to a mortgage,^^ or Us pendensj" or dower,^^ or taxes,^' or easement for support of beams,^" or trifling removable encroachment^^ — for the vendor 12. Smith V. MeCluskey, 45 Barb. 610; Eddy v. Davis, 116 N. Y. 247; Ewing v. Wightman, 167 N. Y. 107. 13. Camp V. Morse, 5 Den. 161 (dictum). The case turns strictly on the vendor's ill-advised pleadings. 14. Biden v. James, 3 S. R. 734, affd. Ill N. Y. 680, without opinion. 15. Sage V. Ranney, 2 "Wend. 532. See also Tanzer v. Bankers' Land etc. Cpn., 159 A. D. 351. In Church v. Bourne, 79 Misc. 629, it may be inferred that, vendor repudiated his obligation under the contract. 16. Garlock v. Lane, 15 Barb. 359; Rosenberg v. Jacobson, 56 Misc. 693. 17. Alpern v. Farrell, 133 A. D. 278. The colloquial term, "lis pendens," is for brevity used throughout this treatise instead of " notice of pendency of action." 18. Kerr v. Purdy, 51 N. Y. 629. 19. Campbell v. Prague, 6 A. D. 554; New York City Estates Co. V. Central Realty Co., 118' Supp. 1054. 20. Higgins v. Eagleton, 155 N. Y. 466. 21. Geffln v. Sehneidler, 105 Supp. 1035, aflfd. 118 A. D. 907 without opinion; Klingenstein v. Alexander, 57 Misc. 236; West- chester etc. Co. v. Whitlock, 80 Misc. 489. Vendee's Duty. 55 may in fact be able to procure the execution of all in- struments necessary to fulfill his contract. The rule as thus broadly stated seems logically correct and satis- factory; but strict compliance with it is perhaps too much to expect of human nature. When the title is hope- lessly involved, tender by the vendee would be an idle — and perhaps dangerous — ceremony. Recognizing this fact, the courts have excused tender where the vendee at Ms own risk proves that the vendor was wholly un- able to perform. It is unnecessary to go so far as to hold, with Smith v. Rogers, 42 Hun, 110, affd. 118 N. Y. 675, without opinion, that upon the vendor's conveyance to a third party the vendee may treat the contract as ter- minated and without tender or demand of performance sue at once for the payments made on account. Not only is such a decision directly opposed to Sage v. Ranney, and to the theory of the other cases above cited, but it also goes far beyond the reason for the modification of the rule. Probably in Smith v. Rogers it satisfactorily appeared to the court that the vendor did not intend to perform, as plaintiff proved that the rents she had been collecting from the tenant in occupation were diverted to the new owner. The modified rule, as supported by the best authority, is correctly stated in Tonge v. Newell, 16 A. D. 500 : — Tender and demand are necessary condi- tions precedent to an action for damages in the absence of proof that it was not within the vendor's power to furnish good title.^^ Tender by the vendor of a deed which includes prem- ises of a third party and a highway does not excuse ten- der by the vendee. ^^ Nor does the existence of Brundage and estoppel certificate clauses in the mortgage sub- ject to which the premises were to be conveyed.^^ 22. See also Alpern v. Farrell, 133 A. D. 278, for discussion and review of cases. 23. Hudson v. Swift, 20 Johns. 24. 24. Rosenberg v. Jacobson, 56 Misc. 693. 56 Tender. Even a curable defect may become material where time is of the essence. One resulting from a mistake, which took defendant six weeks beyond the closing date to correct, may excuse vendee, who meanwhile has lost an opportunity to sell at a profit, from completing and permit him to recover his deposit without having ten- dered the balance. ^^ A vendee who has made part payment has no ground for re(20vering same as against a vendor able to perform,, to whom no tender has been made.^^ § 63. When Excused. — Vendor. — The vendor is ex- cused from tender where the vendee absolutely refuses to perform. Where a day is set for closing, but no hour appointed, the vendor has until midnight in which to make his tender; and he is not in default if, after he has arranged to convey, the vendee declines to wait after 4 p. m.^' Under such circumstances it is not neces- sary to have the instruments of conveyance actually ex- ecuted ; ^ though equity may refuse to enforce the con- tract where the premises were subject to heavy mort- gages and the plaintiff vendor relied on oral agreements with the mortgagees to release, as it is not morally cer- tain that such an agreement will be carried out.^^ The vendor suing for breach of contract, even though actual tender is excused, must show readiness to con- ygySO § 64. Vendee. — If upon vendee's demand for per- formance vendor refuses to convey, it is not necessary 25. Spaulding v. Fierle, 86 Hun, 17, affd. 155 N. Y. 676, oa opinion below. 26. Garlock v. Lane, 15 Barb. 359. 27. Karker v. Haverly, 50 Barb. 79. 28. Blewett v. Baker, 58 N. Y. 611. 29. Hinckley v. Smith, 51 N. Y. 21. 30. Bigler v. Morgan, 77 N. Y. 312. When Excused. 5T fot vendee to make a tender.^^ Nor is such tender nec- essary where vendor is unable to convey marlietable title because of a substantial outstanding mortgage,^^ or a party-wall covenant running with the land.^^ The ven- dee may under such circumstances not only defend a suit for breach of contract,^* but may maintain an action to recover payments made on account. ^^ In McCool V. Jacobus, 7 Eobt.- 115, a vendee who did not even attend on the closing maintained specific per- formance against a vendor whose premises were subject to an assessment and in the possession of tenants who had not been notified to vacate. In Lese v. Lawson, 118 A. D. 254, such vendee was held entitled to recover his deposit from a vendor whose inheritance tax had not been adjusted and paid. So the existence of a consider- able mortgage which vendor was unable to discharge was held to excuse a vendee from attendance on closing and tender, and to justify his recovery of deposit and ex- penses. ^^ In Daly v. Bruen, 88 A. D. 263, it is implied that unless vendor admits his inability to perform, ven- dee must present himself in readiness on the closing day. Vendor may perfect the title within a reasonable time and demand performance by vendee who without tender- ing payment assumes to treat the contract as rescinded.^''^ If vendor persists in bargaining with a third person over |150 asked for the release of an inchoate dower right, he 31. DeJong v. Couch, 32 A. D. 625; Van Benthuysen v. Crapser, 8 Johns. 257. 32. Judson v. Wass, 11 Johns. 525; Burwell v. Jackson, 9 N. Y. 535. 33. Oppenheimer v. Knepper Realty Co., 50 Misc. 186. 34. Same. 35. Lawrence v. Taylor, 5 Hill, 108, stating ohiier that vendee may also sue for damages; Todd v. Union Dime Savings Inst., 118 N. Y. 337. 36. Hewison v. Hoffman, 15 Daly, 176. 37. Hartley v. James, 50 N. Y. 38 (dictum). 58 Tender. may subject himself to an action for damages on the part of a vendee who takes advantage of the situation by omitting to tender the cash balance called for by the contract.^' Where the premises were subject to the lien of judg- ments amounting to $17,000, vendee was not bound to accept a quitclaim, nor to tender the balance of $5,500 payable; but he could promptly upon the discharge of said liens bring suit for specific performance.^' Where the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for breach to make formal tender unless excused by the other party's acts such as refusal or inability to per- form.*" It sometimes happens that after making con- siderable progress toward performance, but with mat- ters still at loose ends, the parties break off negotiations. Neither is in an impregnable position and the question arises whether either is legally liable. In Morange v. Morris, 34 Barb. ^11, affd. 32 How. Pr. 178, the vendee first objected to a lease, but haying accepted rent from the tenant, next objected to tax liens of about $1,600, and without tender of payment claimed the right to rescind the contract. The vendor tendered a deed and alleged readiness to discharge the tax liens. The ven- dee was allowed to recover. This case was very properly overruled by Ziehen v. Smith, 148 N. Y. 558, where the vendee was not excused from tender although the prem- ises were subject to a $1,500 mortgage actually under foreclosure. The court said that the contract was not broken by the mere existence of an encumbrance within the power of the defendant to remove.*^ That is now the 38. Holmes v. Holmes, 12 Barb. 137, affd. 9 N. Y. 525. 39. Delavan v. Duncan, 49 N. Y. 485, and see 4 Hun, 29. 40. Darrow v. Cornell, 30 A. D. 115. 41. Ingalls V. Hahn, 47 Hun, 104, cited as an authority, is not in point, for although the syllabus refers to a tender by vendee, the case shows nothing to justify that statement. Sufficiency. 59 accepted doctrine and is not only a common sense ruling but a practical convenience, for it is customary to dis- charge various liens out of the cash received on closing ; and it is only fair to require a vendee who objects to such practice to be formally correct in his own procedure. A correction deed to cure a clerical error has been held to be on the same footing.^^ § 65. Sufficiency of. — Vendor. — A contract calling for title free from encumbrances within ten days, where time is not of the essence is fulfilled by tender of a deed with covenant against encumbrances within the agreed period, followed eight days later by the removal of a small mortgage, which was the only defect.*' The deed offered must be in perfect condition for im- mediate record.** Nor is it sufficient that a party whose signature is necessary is in attendance; the instrument must be executed and ready.*^ Where the vendee has diedj tender to his executors of a deed drawn to his devisees is sufficient.*^ Tender to one of two vendees is sufficient.*' In the vendor's ab- sence on the closing, the true owner tendered a deed ex- ecuted by himself. The tender was held sufficient where the vendee knew that the vendor was not the owner.*^ The extent of vendor's ownership is immaterial if the 42. Dwork v. Weinberg, 120 A. D. 507. Vendor in this case seems to have had no difficulty in obtaining the correction deed; but such an instrument is not always easy to secure and should hardly be put on the same legal footing with the purely mechani- cal act of paying money. 43. Viele v. Troy etc. R. R., 21 Barb. 381, affd. 20 N. Y. 184. 44. Smith v. Smeltzer, 1 Hilt. 287; Grillenberger v. Spencer, 7 Misc. 601. 45. McWilliams v. Long, 32 Barb. 194. 46. Brinkerhoff v. Olp, 35 Barb. 27. 47. Carman v. Pultz, 21 N. Y. 547. 48. Friedman v. Dewes, 33 Super. 450. 60 Tendee. deed tendered is sufficient to convey the title contracted for.« The contract called for premises " to be occupied as a Jewish Synagogue," the building on same to recede eight feet from Second Avenue. The deed tendered contained a covenant by the grantee for its successors and assigns, " that any building * * * shall be set back eight feet from the line of Second Avenue, and that the premises shall be occupied for a Jewish Synagogue." It was held that the deed tendered was a substantial compliance with the contract, and in the absence of specific objec- tion was sufficient. ^'' A deed accompanied by assign- ments of tax sale certificates is a substantial compliance with a contract for premises free and clear, and in the absence of objection constitutes a sufficient tender.^^ Mailing a deed to vendee's attorney on the closing day is not a good tender. ^^ Where the vendor has died, tender of a deed executed by an executrix with power of sale is good.^^ In Bensinger v. Erhardt, 74 A. D. 169, vendor made a tender while the premises were subject to a mortgage. After vendee's refusal, vendor conveyed to M, and on thie trial made a second tender with a deed from M. It was held that the second tender was ineffectual because plaintiff did not furnish proof that no liens or inchoate dower rights had attached while title was in M. The decision should not be understood as holding that such proof is a necessary part of the tender ; the case had been fully tried, and plaintiff had failed to show that the 49. People ex rel. Taylor v. Brennan, 39 Barb. 522; Clexton v. Tunnard, 119 A. D. 709. 50. Congregation Shaaer Hash Moin v. Halladay, 50 N. Y. 664, overruling 3 Robt. 386. 51. Hun V. Bourdon, 57 A. D. 351. 52. Darrow v. Cornell, 30 A. D. 115. 53. Biden v. James, 3 S. R. 734, affd. Ill N. Y. 680, without opinion. Vendor's Readiness. 61 deeds tendered would have vested in defendant the title bargained for. When vendee sues in equity it has been held that ven- dor may make tender in his answer, and if his title at the time of final decree is good, he may perform the con- tract upon equitable compensation for delay. ^* § 66. Vendee. — When the vendee on the closing day, while objecting to various apparent defects in title, states that he has the cash ready to complete, he makes a sufficient tender in the absence of a demand for the actual money. ^^ The tender must include all the obligations of the con- tract. Where the contract requires vendee to procure a loan for vendor, vendee must tender the amount of the loan.^" § 67. Vendee's Lien. — Tender of a proper deed to the vendee destroys his lien." 4. Readiness. § 68. Vendor's Title. — At Law. — Where vendee makes proper tender and gives notice that he will insist on prompt performance, and neither side invokes the aid of equity, vendor is held strictly to his duty of being ready to convey marketable title; he cannot excuse en- cumbrances nor impose on vendee the burden of dis- charging them.^ The mere existence of a removable en- cumbrance is not, however, in itself a breach of the con- 54. Clute V. Eobison, 2 Johns-. 595. 55. Raben v. Risnikoff, 95 A. D. 68. 56. New York City Estates Co. v. Central Realty Co., 118 Supp. 1054. 57. Johnson v. Duncan, 2 How. Pr. N. S. 366. 1. Zorn V. McParland, 11 Misc. 555, affd. 155 N. Y. 684, with- out opinion; Chamberlin v. Brady, 94 N. Y. 649. 62 Keadiness. tract such as to excuse vendee from tender.^ It is not inconsistent with willingness and ability to perform, which is after all a popular definition of readiness. The vendor is sometimes, as has been shown above, ex- cused from tender ; but he must always show readiness to perform. He fails to do so where the premises are sub- ject to rights in others, as the right to water-power and to use a spring ;^ or a tax sale ;* or a lease f and still more so where he has no title at all.® His obligation extends to the execution of a deed in conformity with the contract.' A general allegation of readiness is sufficient and is not met by a plea that the owner's title was encumbered before the closing date,* nor even on that date, where defendant has not shown, that it exercised its option of purchase so as to oblige vendor to remove the encum- brances.' § 69. In Equity. — In equity it is not necessary for vendor actually to remove the encumbrances if he has the necessary instruments ready for execution on clos- ing and the necessary parties in attendance ready ,to execute them.^" An offer to pay a small tax or allow it out of the price is sufllcient.^^ But it is inexcusable neg- 2. Marsh v. Wyckoff, 10 Bosw. 202; Ziehen v. Smith, 148 N. Y. 558, overruling Morange v. Morris, 34 Barb. 311, affd. 32 How. Pr. 178. 3. Wheeler v. Tracy, 49 Super. 208. 4. Green v. Hernz, 2 A. D. 255, affg. 14 Misc. 474. 5. Tucker v. Woods, 12 Johns. 190. 6. Booth V. Milliken, 127 A. D. 522, affd. on other grounds, 194 N. Y. 553. 7. Bigler v. Morgan, 77 N. Y. 312. 8. Church v. Standard Railroad Signal Co., 52 A. D. 407. 9. Same v. Same, 60 A. D. 613, rvsg. 30 Misc. 261. In this case plaintiff brought suit for rent under a lease with option of pur- chase. 10. Rinaldo v. Housmann, 1 Abb. N. C. 312. 11. Cogswell V. Boehm, 5 Supp. 67. Vendee^s Keadinbss. 63 lect for vendor, under a contract calling for no cash on closing, to fail to remove $750 tax liens.^^ A vendee who for other reasons has refused to per- form cannot in equity object to removable defects.^^ A general allegation of readiness is sufficient for ven- dor's complaint ; under it he may prove ability to make good title in another manner than the one objected to by vendee as insufficient," A vendor who was not ready on closing day because of various encumbrances, some of which cannot be dis- charged, cannot defend against a subsequent action for specific performance on the ground that he tendered a deed.^^ § 70. Vendee. — In order to recover for breach of con- tract to convey, vendee must show that he was ready and willing to perform at the appointed time." He is not obliged to prepare the deed ; " — that as already shown is vendor's duty. Nor is he obliged, when part of the consideration is to be left on mortgage, to execute a mortgage with unusual clauses; nor when vendor in- sists on such mortgage is it necessary for vendee actually to execute and tender a mortgage in the usual form.^* Vendee fails to show readiness when it appears that he insists upon an unnecessary instrument.^' Vendee may without showing readiness on his own part defend vendor's action for breach of contract by proving that the title tendered was unmarketable.^" 12. Piatt V. Zimmermann, 13 Misc. 51^. 13. Forsyth v. Leslie, 74 A. D. 517. 14. Clexton v. Tunnard, 119 A. D. 709. 15. Jerome v. Scudder, 2 Robt. 169. 16. Camp V. Redmond, 13 Supp. 103, 17. Hackett v. Huson, 3 "Wend. 249. 18. Feist V. Block, 115 A. D. 211. 19. Weinheimer v. Ross, 205 N. Y. 518. 20. Wheeler v. Tracy, 49 Super. 208. 64 Demand. Where vendor's title is incurably defective, it is not necessary for vendee to prove readiness.^^ § 71. Demand. — As a general rule either party taking the initiative is required to give expression to his read- iness by making upon the other party a demand for per- formance.^^ In the absence of such demand neither is in default,^^ and the obligations of the contract continue until it has become impossible for one or the other to per- form. When that happens, demand is excused.^* When the closing date has passed without perform- ance, the defense of no demand is regarded as technical.^^ Unless demand by vendee is proved, vendor may enforce specific performance even though _ his title has at all times been and still is subject to removable encum- brances and trifling defects.^* Refusal or inability to perform excuses demand, but the existence of a removable encumbrance does not." When demand has been duly made, performance should follow within a reasonable time,^^ and the liability of the party in default is fixed as of that date.^^ The demand must conform to the rights of the party making it. An attempt to exact more than the contract calls for is wholly ineffective; it does not put in de- fault the party who refuses to comply with it, even 21. Miner v. Hilton, 15 A. D. 55. 22. Fuller v. Hubbard, 6 Cow. 13; Ziehen v. Smith, 148 N. Y. 558. 23. Hackett v. Huson, 3 Wend; 249; Marsh v. Wyckoff, 10 Bosw. 202; Tompkins v. Hyatt, 28 N. Y. 347. 24. Burwell v. Jackson, 9 N. Y. 535; Ritchie v. Bennett, 35 A. D. 68. 25. Berger v. Crist, 121 A. D. 483; Emrieh v. White, 102 N. Y. 657. 26. Winne v. Reynolds, 6 Paige, 407. 27. Ziehen v. Smith, 148 N. Y. 558. 28. Hackett v. Huson, 3 Wend. 249. 29. Hasbrook v. Paddock, 1 Barb. 635. Vendoe^s Death. 65 though he also fails to fulfill his actual obligations. So held where 'the vendee of right, title and interest de- manded a warranty deed f and where vendee demanded personalty not included in the contract. ^^ A demand on vendor's infant heirs is not effective.^^ A demand for f9,000, the agreed price, is effective though same was payable only in part in cash and bal- ance was to be left on mortgage. ^^ 5. Death of Contracting Party. § 72. Vendor. — Vendor 's devisee can make good title. A charge of legacies on the^real estate is transferred to the proceeds of the sale.^ An executor with power of sale can also make good title, for the land has been equitably converted into personalty.^ If there is doubt about the power of sale the devisees should join in the deed;^ be- cause without such power the executors cannot convey.* It has also been held that testamentary trustees of an express trust can carry out the contract.^ 30. Hicksville etc. R. R. v. Long Island R. E., 48 Barb. 355; Palmer v. Hudson Valley Ey., 134 A. D. 42. 31. Lighthall v. McGuire, 20 A. D. 248. 32; Tompkins v. Hyatt, 28 N. Y. 347. 33. Emrieh v. White, 102 N. Y. 657. 1. Guelich v. Clark, 3 T. & C. 315. 2. Williams v. Haddock, 145 N. Y. 144, affg. 78 Hun, 429. It appears from the decision at special term that the executors had power of sale. Holly v. Hirsch, 135 N. Y. 590. The dictum to the contrary regarding administrator c. t. a. in Roome v. Phillips, 27 N. Y. 357, must be regarded as overruled in principle; the attempt to distinguish it is wholly unsatisfactory. 3. Daniels v. Brodie, 3 Edw. 275. 4. Murdock v. Kelly, 62 A. D. 562. In Holly v. Hirsch, 135 N. Y. 590, the court implies that the power must be coupled with an in- terest, but holds that the duty of distributing the proceeds is a fiuflScient interest. 5. Hald V. Claffy, 131 A. D. 251. In this case the property was devised to the executors in trust for A's life, on her death to sell 66 Death of Conteacting Party. The devisee takes title merely as trustee for vendee, and is bound to convey. A religious corporation may under such circumstances convey without order of court.* If vendor dies intestate title can be conveyed only by the heirs.^ They become naked trustees of the title, and as such will on petition of either the administratrix or the vendee be directed by the court to convey.^ Where one or more of the heirs are infants, the court will on application appoint a guardian by whom the deed may be executed. In such case the covenant should be limited to the amount of inheritance received from the ancestor f and it has been held that the heirs should be excused altogether from the covenant against encum- brances which if broken at all is broken as soon as made and hence is a personal claim only.^** A delay of ten years by the heirs in tendering deed will relieve the vendee." The executor or administrator may adjust details with the vendee; he may settle the balance due,^ or ad- journ the closing date even where time is of the essence.^* § 73. Vendee. — ^When vendee dies before taking .title, his interest in the contract is real estate and in case of and divide the proceeds. The executors tendered an executors' deed and are sued as executors. They have no power of sale, for A is still alive. What the court bases its decision on is not clear. 6. Edelstein v. Hays, 50 Misc. 130. 7. Hill V. Ressegieu, 17 Barb. 162. 8. Same; Schroeppel v. Hopper, 40 Barb. 425. 9. Hyatt v. Seeley, 11 N. Y. 52. 10. Hill V. Eessegieu, 17 Barb. 162. The reasoning is not con- vincing, for the covenant could not possibly be broken in deced- ent's lifetime. It may be doubted whether this limitation would be accepted if the question should again arise. 11. Tompkins v. Seely, 29 Barb. 212. 12. Schroeppel v. Hopper, 40 Barb. 425. 13. Williams v. Haddock, 145 N. T. 144. • Auction. 67 intestacy descends to his heirs. His administrator has no power to dispose of it." Nor is his widow entitled to it.i5 An option of purchase is an asset of the estate. Upon exercise of the option an interest in land results, vest- ing in the devisees who are proper plaintiffs in an action to enforce same.^* § 74. Escrow. — A deed in escrow is not affected by the death of the grantor." 6. Auction. § 75. At an auction each lot is usually sold separ- ately. The fact that a single receipt is given, calling for a single deed, does not make the purchase of several lots a single, indivisible contract; nor does the fact that purchaser bought with a view to creating several large blocks of land out of numerous adjoining lots give him a right to rescind his entire purchase on discovering that the title to three of the lots is unmarketable.^^ An auction is not governed by the strict rules appli- cable to ordinary sales. The bidder is entitled to a rea- sonable opportunity to investigate; and instead of be- ing bound by the terms of every encumbrance of which he has notice, he is bound only by what he ought to antici- pate as within ordinary experience. When he is notified of a restriction " as to buildings," he is not obliged to accept a deed subject to restrictions as to height, cost, roof, distance from highway, fences and use, all of which may be released throughout a large tract at the discre- 14. Palmer v. Morrison, 104 N. Y. 132, affg. 51 Super. 530. 15. Abate v. Bianco, 143 A. D. 511. 16. Farley v. Secor, 167 A. D. 80. 17. Webster v. Kings County Trust Co., 145 N. Y. 275, affg. 80 Hun, 420; Campbell v. Morgan, 68 Hun, 490. 18. Van Eps v. Schenectady, 12 Johns. 436. 68 Voluntary Partition. tion of a former owner. The provision for release is so unusual and far reaching in its effect on value that it would not be fair to require vendee to submit to it without warning.^* 7. Voluntary Partition. f 76. "Voluntary partition between two tenants in common who took by descent does not change the tenure to a holding by purchase.^ Where legacies are bequeathed by a tenant in com- mon in excess of the value of his personalty, it is not clear that a voluntary partition between his devisee and the surviving tenant in common, B, cuts off the lien of the legacies from the premises taken by B upon such partition, and B's title is not marketable.^ On a voluntary partition made in good faith and in equal quantities, dower rights attach only to the shares in severalty of the respective husbands.' Such partition made in unequal shares in order to carry out the terms of a void will does not vest market- able title; the division should have been equal.* But it may be ratified by releases made with full knowledge.^ 19. Sohns V. Beavis, 200 N. Y. 268, affg. 133 A. D. 717. 1. Conklin v. Brown, 57 Barb. 265. 2. Jordan v. Poillon, 77 N. Y. 518. 3. Totten v. Stuyvesant, 3 Edw. 500. 4. Salmon v. Stuyvesant, 16 Wend. 321. 5. Eoot V. Stuyvesant, 18 Wend. 257. CHAPTER IV. JUDICIAL AND STATUTORY SALES. 1. Judicial Sale. § 80. Title Offered. — In an early case it was held, upon the analogy of a voluntary partition, that the title offered at the sale decreed in an action of partition took no account of encumbrances; that the rights of the parties were determined subject to equities and encum- brances, and the property sold cwm onere; and that con- sequently the purchaser could not complain of a doubt- ful title.^ At a later date appeared in a syllabus the statement that a purchaser in foreclosure cannot object to defects prior to the mortgage.^ But these rules do not represent existing law. It is true that where the advertisement and terms of sale indicate merely " right, title and interest," the purchaser takes subject to liens existing at the time of sale, in spite of representations that the premises (interpreted as defendant's interest) would be sold free from encumbrances.^ Usually, how- ever, it is the land, and not an interest therein, that is sold, and the title is supposed to be even better than what is considered marketable upon private sale. Terms providing that purchaser takes title at his own risk do not justify the tender of a tax lease long since expired, and nothing further; there must be at least a pretence of title.* 1. Sebring v. Mersereau, 9 Cow. 344, affg. 1 Hop. 501. 2. Fryer v. Rockefeller, 4 Hun, 800. There is nothing in the case or opinion to justify the syllabus. 3,. Wichman v. Aschpurwis, 55 Super. 218. 4. Davis V. Carroll, 4 Monthly Law Bui. 31. (69) 70 Judicial Sale. The courts have in recent years become more em- phatic about the title offered at judicial sale. At first it was described simply as " such a title as a purchaser at a private sale could not legally object to receive;" ^ "such an interest in both the land and in the buildings thereon, as he was authorized to suppose he was buying when the property was struck down to him upon his bid."^ Then came a series of definitions or descriptions not greatly differing from those referring to private sales, as that a purchaser will not be compelled to ac- cept at judicial sale a title subject to hazard of probable contest and litigation ; ^ and that he has the right to as- sume that he will receive a conveyance of the fee and that the title is marketable, that is, such as will be " accepted by an ordinarily prudent man when the property is again offered for sale or as security for a loan." * Mean- while a few judges, mostly at special term, had gone to the unwarranted length of asserting that the title must be " perfect," ' or such as the court can " conscienti- ously warrant." ^" More significant are the cases which contrast the judicial with the private sale. As the court of appeals said obiter in Haberman v. Baker, 128 N. Y. 253 : At a judicial sale the court might " be influenced differently from a case like the present, where the action is upon * * • private contract. • • * But this is just; for in the former case the purchaser is warranted in assuming not only that the title to the land is readily market- able, but also that the judgment of the court has set 5. Spring v. Sandford, 7 Paige, 550. 6. Seaman v. Hicks, 8 Paige, 655. 7. People V. Knickerbocker Life Ins. Co., 66 How. Pr. 115 ; Flem- ing V. Burnham, 100 N. Y. 1, rvsg. 36 Hun, 456. 8. Wanser v. DeNyse, 188 N. Y. 378, rvsg. 116 A. D. 796. 9. Eogers v. McLean, 31 Barb. 304, rvsd. on other grounds, 11 Abb. Pr. 440, and 34 N. Y. 536; Lee v. Lee, 27 Hun, 1. 10. Coster v. Clarke, 3 Edw. 428. Title Offered. 71 at rest all questions whicli might reasonably be raised concerning the validity of the title offered. In all cases, I suppose that the quality of the title must be the same ; but where the deliberate convention of private parties results in a contract * * * plaintiff's right to an en- forcement of that contract should be considered more favorably." And again obiter in Heller v. Cohen, 154 N. Y. 299 : " A purchaser at a judicial sale will not be com- pelled to take a doubtful title, and where irregularities or defects exist * * * that require further or other ac- tion to cure them, * * * the objection of the purchaser, based upon the existence of those defects, should not be overruled, but he should be relieved from his contract." The courts are not as liberal, says the appellate division, relieving a purchaser under private contract on account of technical defects, as at a judicial sale.^^ It will be observed, however, that all these assertions are either obiter or argvsndo; and it is difficult to find any case in which on the merits the court has made a rul- ing any more lenient to the purchaser at judicial sale than what the vendee sued in equity under a private contract would receive. The purchaser at judicial sale, for instance, may be required to accept a title founded on adverse possession.^^ He is not relieved because of the failure of a public officer to do his duty, as a clerk to file papers delivered to him, or for errors and irregu- larities promptly corrected.^* The court on a receiver 's sale must protect the estate as well as the purchaser, 11. Baumeister v. Demuth, 84 A. D. 394. And see Holly v. Hirseh, 135 N. Y. 590. 12. Grady v. Ward, 20 Barb. 543; Shriver v. Shriver, 86 N. Y. 575, affg. 24 Hun, 658. , 13. Alvord V. Beach, 5 Abb. Pr. 451 ; Hall v. Partridge, 10 How. Pr. 188,; Disbrow v. Folger, 5 Abb. Pr. 53; Waring v. Waring, 7 Abb. Pi". 472. But a delay of three months was held to relieve the purchaser. Rice v. Barrett, 99 N. Y. 403, rvsg. 35 Hun, 366. 72 Judicial Sale. anS will decide all questions in its own equitable dis- cretion." In fact there seems no reason for modifying the rule already quoted from Goodwin v. Crooks, 58 A. D. 464, affg. 33 Misc. 39 : "A person who bids at the sale will not be relieved ♦ * * unless he states facts tending to show that the objections which he makes have a rea- sonable foundation." A mere captious objection is not enough; there must be reasonable doubt as to the valid- ity of the title — " such a doubt as affects its value and would interfere with its sale to a reasonable purchaser. * * * It is not sufficient * * * to say simply that cer- tain facts may exist which * * * would throw doubt upon the title, but he must at least give some suggestion of evidence to warrant the court in inferring that the de- fects which invalidate the title do exist, and until such facts are stated, the title will not be impeached." What the courts have in mind in suggesting a dis- tinction between private and judicial sales may be the popular notion that title tendered by the court must be valid. It would probably be no exaggeration to say that the uninitiated reasonable man attaches special sanction to a referee's deed and believes the title pur- chased at judicial sale the best imaginable. The courts doubtless have an uneasy feeling that such, instead of the exact contrary, ought to be the fact, and they endeavor to reassure themselves as well as the public by such dicta as are quoted above. The real difficulties are,, first, that no special proceeding and no action except partition is adapted to cure pre-existing defects; and next, that the defects are not discovered by the innocent purchaser un- til he tries to sell or mortgage, when an entirely different situation has to be dealt with. When a purchaser be- fore completion finds a defect or question in the title 14. People V. New York Building-Loan Banking Co., 189 N. Y. 233. Protection to Purchaser. 73 tendered at judicial sale, he may expect to receive liberal, equitable treatment from the court; but that he will re- ceive or is entitled to any different treatment than a ven- dee under private contract may well be doubted. § 81. Protection to Purchaser. — There is one thing that the court can do, and that is to protect the pur- chaser against claims of parties to the action or proceed- ing under which the sale has been ordered, and subse- quent purchasers or encumbrancers. It may and should require the correction of irregularities, under penalty of relieving purchaser if same are not promptly made.^^ It may direct that the share of a life tenant be paid into court for administration until the final vesting of the remainders.^^ It may order a reference to take proof of debts, requiring plaintiff to establish clearly that there are none." It may direct the deposit in a trust company of sufl&cient funds to cover all known claims against plaintiff's ancestor, so as to obviate creditors' proceedings in the surrogate's court. ^^ While adjudging a subsequent mortgage invalid, it may nevertheless, when mortgagee is not a party to the action, withhold payment of mortgagor's share until release of the mort- gage.^' But it should not impose such an indefinite condition as that plaintiff should institute an action to establish proof that there are no valid claims against a certain apparently voidable transaction by an executor.^" Plaintiff's offer to let purchaser retain the amount 15. Von Hatten v. SehoU, 1 A. D. 32. 16. Noble V. Cromwell, 26 Barb. 475, affd. 3 Abb. Dec. 382. 17. Hall V. Partridge, 10 How. Pr. 188; Disbrow v. Folger, 5 Abb. Pr. 53. 18. Waring v. Waring, 7 Abb. Pr. 472. 19. Sears v. Hyer, 1 Paige, 483. 20. People v. Open Board etc. Co., 92 N. Y. 98, modifying 28 Hun, 274. 74 Judicial Sale. of a judgment and expense of satisfying same is suffi- cient protection in the absence of any reason to believe that the judgment cannot be discharged. ^^ § 82. Conduct of Sale. — No deception will be per- mitted at a judicial sale. No item may be added to the description which may unduly enhance the value of the property or mislead the purchaser. ^^ No announcement containing error should be made, even though stated to be unofflcial.^^ The purchaser has a right to rely on the terms of sale as published; and it is not negligent for him not to no- tice an oral correction at the auction. If the written mistake was material, as representing that a mortgage actually under foreclosure still had eighteen months to run, ^;he purchaser will be relieved.^^ The terms should disclose unusual circumstances. It is not fair, and not sufficient, to sell simply " subject to a lease to expire May 1, 1884," when the lessee thereunder has the privi- lege of removing a $5,000 building. ^^ A party interested in the successful conduct of the sale may make suggestions as to the means for securing the best price. In the absence of good reasons his re- quests should be granted ; and against his wishes it would be unfair to sell on election day and to refuse to sell a corner lot first. ^^ It is not proper, where no defect of title is known, for the sherifE to announce that the pur- chaser buys at his own hazard," or subject to the right, title and interest, if any, of New York City, and sub- 21. March v. Marasco, 165 A. D. 348. 22. Veeder v. Fonda, 3 Paige, 94. Area exaggerated. 23. Laight v. Pell, 1 Edw. 579. Dimensions of building exag- gerated. 24. Bradley v. Leahy, 54 Hun, 390. 25. Beckenbaugh v. Nally, 32 Hun, 160. 26. King V. Piatt, 37 N. Y. 155. 27. Marsh v. Eidgway, 18 Abb. Pr. 262. Subject to Exceptions. 75 ject to covenants and restrictions, if any,^^ for by such suggestion he throws doubt on the title. The fact that it is a resale is of no consequence and need not be an- nounced.^' That the sale was made (on consent) by a referee in- stead of the sheriff as provided by law is a mere irregu- larity not affecting title.^* § 83. Appeal Pending. — "A judicial sale made pur- suant to the decree or judgment of a competent court, having jurisdiction of the subject-matter and of the parties, passes title to the purchaser, even though the judgment should afterwards be reversed or set aside for error or irregularity on appeal." Consequently the pend- ency of an appeal ^^ or motion to set the judgment aside ^^ is immaterial. A motion to open a default is on the same footing; if the defense thereby permitted should be established, defendant's claim would be con- fined to the proceeds.^^ But when the judgment under which the sale was made was actually reversed before completion, pur- chaser cannot be compelled to take title. ^* § 84. Exceptions. — When a judicial sale is made sub- ject to the rights of certain persons, the fact that said rights are valid and outstanding is no objection to the title; the purchaser will get all he bid for.^^ 28. Mullins v. Tranz, 162 A. D. 316. 29. Plaut V. Moores, 142 N. Y. 646. 30. Sproule v. Davies, 171 N. Y. 277, afifg. 69 A. D. 502. 31. Penfield v. James, 4 Hun, 668 ; Ebert v. Hanneman, 69 Misc. 223; Hill v. Flatbush Consumers' Ice Co., 143 A. D. 559. 32. Holden v. Sackett, 12 Abb. Pr. 473. * 33. Waugh V. Bailey, 4 Supp. 817, affd. 115 N. Y. 694, on opinion below. '34. Burnbam v. Denike, 54 A. D. 628, aflfd. 167 N. Y. 623, without opinion. 35. Cromwell v. Hull, 97 N. Y. 209. 76 Judicial Sale. When a certain specified lien is excepted, the exist- ence of another different lien is objectionable.^^ § 85. Demand. — A motion to compel purcliaser to complete is prerequisite to forfeiture of deposit.^'' § 86. Conveyance. — The referee must execute a com- plete and satisfactory deed. No one is authorized to fill in blanks left in the deed by the referee; and even though such insertion was merely the name of the pur- chaser to whom the premises had already been knocked down, it is a fatal alteration.^^ § 87. Revenue Stamps. — A federal law made failure to afSx stamps to a deed as therein provided a misde- meanor ; but the state courts had held that an unstamped deed could be recorded and read in evidence. Neverthe- less on judicial sale the court directed the referee to affix the necessary stamps to his deed ; for, as the judge said, the purchaser is entitled on such sale to a deed which may be used as a defense to his title in any tribunal, including the federal courts, where it may be called in question, and moreover the court should not direct its officer to commit a misdemeanor.^^ 2. Various Actions and Proceedings. § 88. Judicial sale of real estate may be ordered in a great variety of actions and special proceedings. Al- most any equitable action, besides certain common law actions, may involve it and a number of special proceed- ings have been devised for that particular purpose. In 36. People v. Mutual Brewing Co., 9 A. D. 628. 37. Nesbit v. Knowlton Hall Co., 45 Misc. 510 (dictum). 38. March v. Marasco, 165 A. D. 348. 39. Loring v. Chase, 26 Misc. 318. The first reason would seem to apply with equal force to private sales. Various Actions and Proceedings. 77 the same category are administrative sales without judi- cial intervention, as sales for taxes and under execu- tion. The list of actions, special proceedings and ad- ministrative sales in which marketability questions have been adjudged includes the following: Partition, mortgage foreclosure by action, mortgage foreclosure by advertisement, incompetents' proceedings, trustees' proceedings, sheriff's sale on execution, tax sales, tax lien foreclosure, administrators' sales to pay debts, bankruptcy, assignment for benefit of creditors, foreclosure of mechanics' liens, enforcement of tenement house laws, admeasurement of dower,^ executors' ac- counting,^ specific performance,^ covenant,* subroga- tion,^ action to cancel mortgage,^ action to construe will,^ partnership accounting,* accounting generally,^ action to compel payment of legacies,^" judgment Credi- tors' suit," action to remove cloud on title,^^ receivership generally,^^ dissolution of corporation," liquidation of bank.^^ Special statutes have from time to time been enacted to provide for the sale of piarticular privately 1. For the foregoing, see post, ^ 148-226. 2. Barnes v. Luther, 77 Hun, 234. 3. King V. Piatt, 37 N. Y. 155. 4. Wilson v. Parshall, 129 N. Y. 223, approving 4 Silv. Supm. 374. 5. New York Security & Trust Co. v. Sehoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below. 6. Darrin v. Hatfield, Said. Notes, 38, rvsg. 4 Sand. 468. 7. Hicks V. Cochran, 4 Edw. 107. 8. Dawson v. Parsons, 10 Misc. 428. 9. Ennis v. Brown, 1 A. D. 22. 10. Hallett V. Hallett, 2 Paige, 15. 11. Morris v. Mowatt, 2 Paige, 586; Burwell v. Jackson, 9 N. Y. 535. 12. Boyd V. Schlesinger, 59 N. Y. 301. 13. People V. Knickerbocker Life Ins. Co., 66 How. Pr. 115. 14. People V. New York Building-Loan Banking Co., 189 N. Y. 233. 16. Northern Bank of New York v. Drury, 152 A. D. 64; Lafa- yette Trust Co. V. Beggs, 213 N. Y. 280. 78 Service of Process. oVned parcels of real estate/^ Submission of contro- versy is a common method of bringing before the court a question of marketability, especially one arising on the construction of a will ; and even ejjectment, which of itself could not possibly involve any marketability issue, may do so on the equitable plea of the answer.^' It is by no means all of the foregoing actions, proceed- ings and sales that are adapted to clear a complicated title for conveyance. In most of them there is no way of bringing in lienors and claimants other than those directly opposed to plaintiff. A good example is the case of Hallett v. Hallett, 2 Paige, 15, where plaintiffs in behalf of themselves and all other legatees brought suit to compel the executors to sell certain premises in order to raise funds for payment of the legacies. It was held that outsiders could not be compelled to litigate the title and the property must be sold subject to their rights, whatever they might be ; that not even the other legatees would be bound by the decree or their liens affected. It .may in fact be broadly stated that no action or proceed- ing is adapted to clear a vexed title except the modern /action of partition. ^ The more important actions, special proceedings and administrative sales are discussed separately below. 3. Service of Process. § 89. Persons Non Sui Juris.— Incompetents. — A. person non sui juris is liable to be sued and service of process upon him gives the court jurisdiction. A judg- ment in partition is good as against a lunatic defendant so served, where such defendant had never been judi- 16. Leggett v. Hunter, 19 N. Y. 445, affg. 25 Barb. 81; Matter of New York Protestant Episcopal Public School, 31 N. Y. 574; Mat- ter of Bull, 45 Barb. 334; Ebling v. Dreyer, 149 N. Y. 460, rvsg. 79 Hun, 319; Matter of Evergreens, 47 N. Y. 216. 17. Gibert v. Peteler, 38 N. Y. 165, approving 38 Barb. 488. Peesons Non Sui Juris. 79 cially declared incompetent and no committee had been appointed.^ Where a committee or guardian has been appointed for a non-resident incompetent, the summons in parti- tion must be mailed to such person in charge. Although the statute ^ states merely that the summons may be so served, it prescribes the sole method of service and is mandatory. Where the summons is mailed to the incom- petent only, title under the judgment is not marketable.* It was held in 1866 that a non-resident infant idiot could appear voluntarily in partition on the petition of his foreign guardian followed by the appointment of a guardian ad litem.* Subsequent statutory changes have impinged upon the authority of this decision. § 90. Infants. — Under the old chancery practice it was not necessary to serve process on infants.^ They were wards of the court, sufficiently protected by the appointment of a guardian ad litem; and this rule con- tinued to prevail in partition ^ for many years after the disappearance of the court of chancery, and after it had ceased to prevail in foreclosure.'' As late as 1871 ser- vice on non-resident infants of an order notifying them that if they did not procure a guardian ad litem within forty days D would be appointed such guardian was suf- ficient basis for the appointment of D as such guardian 1. Prentiss v. Cornell, 31 Hun, 167, affd. 96 N. Y. 665, without opinion. 2. Code Civ. Proc, § 438, | 7. 3. Sonn v. Kennedy, 51 Misc. 234. 4. Rogers v. McLean, 34 N. Y. 536, affg. 11 Abb. Pr. 440, rvsg. 31 Barb. 304. 5. Shriver v. Sliriver, 24 Hun, 658, affd. 86 N. Y. 575. 6. Disbrow v. Tolger, 5 Abb. Pr. 53. 7. Glover v. Haws, 19 Abb. Pr. 161 n. (1862) ; Ingersoll v. Mangam, 84 N. Y. 622 (1881), affg. 24 Hun, 202. 80 Service of Process. and the subsequent entry of judgment in partition un- der which the title of said infants could be sold.^ It was suggested that on a foreclosure as late as 1873 service of the husband was sufficient to bind the wife named in the summons but not served ; ' but the contrary was authoritatively decided of an 1874 foreclosure.^" It has also been held at special term that even under the Code practice an infant could appear voluntarily;^^ but it is now authoritatively settled that since 1880 ^ no jurisdiction can be obtained over non-resident in- fants except through the intricate formalities of ser- vice by publication.^' Nor are resident infants under fourteen years of age brought within the jurisdiction of the court by personal service unless their parents or guardians are also served.^* The rule does not, however, go to the extreme of re- quiring a guardian ad litem to be appointed when un- known parties are served.^^ There is no presumption that any of the unknown parties are minors and the statute makes no provision for such a possibility.^^ Special provision is made by the Code " for the service of absent resident infants. Such service may be made only under a court order, the requirements of which may not be changed or enlarged by a judge's order. Nor may the person designated to receive service of the order 8. Gotendorf v. Goldschmidt, 84 N. Y. 110. 9. Watson v. Church, 3 Hun, 80. 10. Kursheedt v. Union Dime Savings Institution, 118 N. Y. 358. 11. Thistle V. Thistle, 5 Civ. Proc. 43; Rogers"^ v. McLean, 34 N. Y. 536. 12. Laws of 1880, c. 245. 13. Moulton V. Moulton, 47 Hun, 606. 14. Bellamy v. Guhl, 62 How. Pr. 460. 15. Wheeler v. Scully, 50 N. Y. 667. 16. Code Civ. Proc, § 135, | 6. 17. Code Civ. Proc, § 473; Schell v. Cohen, 55 Hun, 207. Unknown Persons. 81 be the plaintiff in the action, with interests hostile to those of the infant. ^^ In the federal courts jurisdiction is acquired in an ac- tion in rem or quasi in rem by seizure of the res and no- tice to interested parties. Personal service of infant de- fendants is not necessary in a federal judgment credi- tor's action.^^ § 91. Unknown Persons. — Heirs Presumptive. — Whether it is necessary to serve the heirs presumptive (descriptively speaking) of a person whose actual heirs are unknown may be regarded as not conclusively set- tled. J M disappeared and was not heard of for eighteen years, but the names and addresses of his brothers and sisters were known. In a partition suit service was made on J M by publication and on his heirs as unknown defendants. Apparently none of the brothers or sisters was named individually in the summons or personally served therewith. It was held that J M and his heirs, whoever they might be, were bound by the judgment; and that the title thereunder was marketable.^" This conclusion would appear to rest on the proposi- tion that a man is presumed to leave direct heirs — an unwarranted extension of the well known presumption. The cases cited in the opinion by no means support it, nor is the reasoning convincing; and the decision may be regarded as rather slender authority to excuse service on the nearest known relatives in whom descent might vest. The more prudent practice until the point is bet- ter settled would certainly be to serve such heirs pre- sumptive. 18. Uhl V. Loughran, 16 C. P. 386, affg. 14 C. P. 344. 19. Sloane v. Martin, 145 N. Y. 524, affg. 77 Hun, 249 (but not approving reasoning of supreme court). 20. Guyer v. Raymond, 8 Misc. 606. 82 Sekvice of Process. A suggestive, though not strictly analogous, case is the following: C died seized and in foreclosure un- known defendants were served by publication " being other heirs or next of kin and executors, administrators, devisees and legatees, if any, of 0." Objection was made to the title and upon the proceedings therein it developed that had left an instrument, offered for probate but never adjudicated, purporting to devise in trust. The court held that as the afQdavits for serving the unknown defendants did not show that trustees nominated by were unknown to plaintiff, and the complaint did not specially mention them, they were not cut off, and the title was at least doubtful.^^ The decision may be said to go to the opposite extreme, as it neither includes the trustees among the " devisees " mentioned as unknown defendants, nor gives weight to the allegation that such " devisees " were unknown to plaintiff. Where the proof shows that there were no unknown heirs it does no harm to name John Doe in the summons as an unknown heir. Under such circumstances it is obviously unnecessary to include John Doe's wife as a party.^^ The court remarked (obiter) that it is absurd to try to invalidate a title by insisting that a person of whose existence there is no proof should have been made a p^rty. § 92. Description. — The service of unknown parties in partition was long regulated not by the Code of Civil Procedure, but by the Revised Statutes. ^^ Under that practice, while it was not necessary to designate the un- known persons by fictitious names, it was a jurisdic- tional defect to omit a notice of the object of the action from the publication of the summons.^* 21. Moir V. Flood, 66 A. D. 544. 22. Lenehan v. College of St. Francis Xavier, 51 A. D. 535; Same v. Same, 54 A. D. 637. 23. 3 R. S. 605; Laws of 1831, c. 200; Laws of 1842, c. 277. 24. Sandford v. White, 56 N. Y. 359. Unknown Persons. 83 Where the service complifs with the statutory require- ments, it binds all unknown heirs, whatever their legal status may be.^^ There is no objection to doscribing the unknown persons as the heirs at law " if any."^* Pub- lication in foreclosure against " all persons unknown haviug or claiming an interest in said premises, being herein described as wife, widow, heirs at law, devisees, grantees, assignees, or next of kin of said C and their respective husl)ands and wives, all of whom are unknown to plaintiff " was held to cut off everybody who might claim under C." The proper description of unknown parties and the extent to which it is necessary to follow possible devolu- tion of title after they have ceased to be known are fully considered in Snyder v. Parezo, 151 A. D. 110, affd. 206 N. Y. 689, without opinion. While the practice adopted in that case is not so simple or direct as might have been desired, yet having been approved by the court of ap- peals it may. appropriately be recited here as a guide to the practitioner in a perplexing situation. The action was in partition, to dispose of a title derived through M and N, each of whom had disappeared about thirty-five years before and had not been heard of since. The fol- lowing were made defendants: M, if living, and A his wife, if any, or if he be dead, A his widow, if any, and B, C, D, E, F, G, n, I, J, K and L, the said names being fictitious and being intended to designate the wife, if any, of said M and if he be dead his widow, heirs at law, de- visees and their legal representatives, and their wives, widows or husbands, if any, and the heirs at law, de- visees and legal representatives of any who may be dead ; and also N, with fictitious names for widow, heirs, etc. 25. Wheeler v. Scully, 50 N. Y. 667. 26. Abbott V. Curran, 98 N. Y. 665, affg. 20 W. D. 344. 27. Moran v. Conoma, 59 Super. 101, affd. 128 N. Y. 591, with- out opinion. See also Leopold v. Heymann, 163 A. D. 16. 84 Service of Peooess, The service was approved; and tlie api)ellate divi- sion's caustic criticism of the purchaser's objections is instructive. There are, said the court, names to cover all persons interested, and if notice should come to the eye of any such person, he would know for whom it was intended and would not be allowed to speculate whether it was meant for him. The law presumes heirs and to these unlocated creations of a legal pre- sumption the summons allotted names and described them as falling into classes. It substantially stated that they were unknown, even though it did not liter- ally do so. It was a rational exposition of ignorance of persons. There is no presumption as to executors or wives or husbands of heirs and no provision need be made for them. To conjecture such things would be to pile speculation on a legal subtlety and raise mere phantoms to be made parties to the action. The objections merely raise idle speculations. There is no presumption that unknown heirs are mar- ried or under age and no provision need be made for such contingency.^^ § 93. Substituted Service. — When Authorized. — Service of process or other papers may be made by substitution upon a defendant evading service. The following was held in Nagle v. Taggart, 4 Abb. N. 0. 144, sufficient proof of evasion : Affidavits that defendant J is neither a soldier nor a sailor, that he resides in B, that deponent has used all proper and diligent efforts to serve him by repeatedly visiting places he has been ac- customed to frequent and calling on several occasions at his home, but J could not be found, and deponent could not ascertain when he would be at home and believed that J kept himself concealed. 28. Flanagan v. Thomas, 166 A. D. 941. Service by Publication. 85 § 94. Persons Non Sui Juris. — Persons non sui juris may be served by substitution, as a married woman (before the Married Women's Act) ^^ or an infant.^" § 95. Formalities. — Where the order directed service on an infant E by leaving a copy with a person of proper age at E's residence if admittance could be obtained, or if not, by affixing same to door and mailing a copy to E, it was not necessary, after serving a copy thereof on E's mother at said residence, to mail another copy to E.31 A lis pendens was filed in foreclosure December 17, 1884 ; substituted service on the mortgagor was duly made February 12, 1885, sixty-one days after the Us pendens; and the affidavits were filed February 16, 1885. It was held that such service supported the notice and cut off liens recorded March 2, 1885.^^ § 96. Judgment on. — After substituted service plain- tiff should prove his cause of action before the court or a referee, as provided by § 1216 of the Code. His failure to do so may make the judgment voidable. As the ques- tion is new, the purchaser under such judgment need not take the risk of an adverse decision.^^ § 97. Service by Publication.— ^^ec* o/.— Where service on a non-resident is duly made by publication, pursuant to the statute, a judgment based thereon i& valid, and even though erroneous, binds the parties so 29. Nagle v. Taggart, 4 Abb. N. C. 144. 30. Steinhardt v. Baker, 163 N. Y. 410, affg. 25 A. D. 197; Over- ton V. Barclay, 89 Hun, 611. 31. Overton v. Barclay, 89 Hun, 611. 32. Ferris v. Plummer, 46 Hun, 515, rvsg. 42 Hun, 440, on re- argument. 33. Lauder v. Meserole, 148 A. D. 738. See U 147, 169. 86 Service op Process. served.^^ The statute makes no distinction in substance between infants and adults ;^^ nor did the Code of Pro- cedure in form.'^ Where all the provisions of the statute regarding no- tice are complied with, it is not material that the order was informal, — as in directing the mailing of notice of the object of the action instead of the complaint, where the complaint was actually mailed.^' Nor can the allega- tions of the affidavits on which the order of publication was based be questioned collaterally, where they were sufficient to give the court jurisdiction.^^ § 98. Jurisdiction. — The court does not acquire juris- diction until the statutory formalities have been com- plied with, an essential one of which is publication or at least the expiration of a period of time equal to that required for publication.^^ § 99. Absence. — The decisions regarding service on residents of the state temporarily absent follow the same course as those relating to non-residents.*" § 100. Service Outside the State. — Since personal ser- vice of process outside the state is ineffectual unless made pursuant to an order therefor, it follows that such service has the attributes of service by publication, and gives defendant the full period required for publication before his time to answer begins to run.*^ Actual pub- 34. Jenkins v. Fahey, 73 N. Y. 355. 35. Syracuse Savings Bank v. Burton, 6 C. P. 216. 36. Code Proc, i 135; Home Ins. Co. v. Head, 30 Hun, 4Q5. 37. Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402, affg. Ill A. D. 578. 38. Syracuse Savings Bank v. Burton, 6 C. P. 216. 39. Crouter v. Crouter, 133 N. Y. 55. 40. Jones v. Freeman, 22 W. D. 524; Coffin v. Lesster, 36 Hun, 347, afid. 110 N. Y. 645, without opinion. ^ 41. Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. SERyiCE BY Publication. 87 lication is not necessary, however, nor is mailing;*^ nor is it any objection that the order does not provide for publication or mailing, and the case of Kitten v. Grif- fith, 16 Hun, 454, to the contrary, has been overruled by Matter of Field, 131 N. Y. 184. § 101. Unknoion Residence. — Inability to ascertain defendant's residence is ground for serving him by pub- lication. It must not be confused with non-residence, as the proof required is slightly different and it naturally excuses mailing. The distinction is clearly brought out in Langdon v. Schiff, 189 N. Y. 548, where diligent in- quiry revealed only the fact that defendant C's residence, probably not in W Co., was unknown, and the affi- davits are wholly barren of allegations or proof of ef- fort to serve. There must be some proof of efforts to ascertain the residence. ^^ The following aflfldavits have been held sufficient : 1. Diligent search and inquiry, and inability after due diligence to find B in the state; that deponent was in- formed by other defendants that B resided in Maine, but at what place he could get no information.^* 2. Search by A for one week; return of summons "not found " by sheriff, with certificate of due diligence and that from the best information he could obtain B is not a resident of the county; that B used to live in the county, but his present residence and whereabouts could not be ascertained.** 3. Inquiry of M, B's gran- tor; examination of tenant of premises under order of court; inquiry of B's attorney at whose request the 42. McCully v. Heller, 66 How. Pr. 468; Kennedy v. Arthur, 18 Civ. Proe. 390 (dictum) ; Matter of Field, 131 N. Y. 184. 43. Thorn v. Sheil, 15 Ahb: Pr. N. S. 81. 44. Walker v. Reiff, 13 W. D. 331. 45. Spaus V. Schafiner, 2 Supp. 189. 88 Service of Peocess. deed to B was recorded; search, in directory; that only information was that B formerly resided in New York or Melrose, but that his present residence could not be ascertained and he cannot with due diligence be found within the state.*® 4. That B was under indictment for rape; that neither his bondsman nor the police could find him; that he had not collected the rents of the premises; that plaintiff had made diligent efforts to serve him.*'' The following affidavit was held insufficient: De- fendants, B and 0, I suppose reside outside the state, but I cannot after diligent inquiry ascertain their resi- dence ; B is a sailor and has no fixed residence ; plaintiff will be unable with due diligence to serve them in this state.*^ The court, drawing no distinction between B and C, remarks that the allegations of non-residence and inability to serve are mere conclusions; that the affi- davits must contain probative statements of fact. The opinion, though carelessly worded, seems correct in re- sult as to C — less clearly so as to B. Mailing is unnecessary where residence is unknown.**^ A direction to mail to B in New York City does no harm.^ § 102. Non-Residence. — The allegations of non-resi- dence and probative statements in support thereof do not usually cause much trouble. The difficulty comes rather in the frequent attempt of attorneys to attach to the premise of bare non-residence the conclusion of in- ability to serve in New York. Although that practice 46. Lowerre v. Owens, 14 A. D. 215. 47. Wichman v. Aschpurwis, 55 Super. 218. The court remarks that the above facts are evidence of non-residence. It is more satisfactory to regard the decision as an authority on unknown residence. 48. McLaughlin v. McCann, 123 A. D. 67. 49. Walker v. Reiff, 13 W. D. 331. 50. Spaus V. Schaffner, 2 Supp. 189. Seevice by Publication. 89 was countenanced by Kennedy v. N. Y. Life Ins. & Trust Co., 101 N. Y. 487, it is neither sound nor safe. The rule laid down in the Kennedy case is that a ■<" clear state- ment that defendant are non-residents of the state, and reside in other and distant states, and that the summons which has been issued cannot be served by reason thereof " — is sufficient. As an academic statement this is too broad to accept as a criterion to-day; as applied to the facts of the Kennedy case, where the defendants resided in Baltimore, Md., Lawrence, Mass., and Pater- *son, N. J., it would seem to be so inappropriate as to rob that case of all pretence of authority. In the same doubtful class with it are Miele v. Deperino, 4 Silv. C. A. 611, where defendants resided in eastern Massachusetts, and Volz v. Steiner, 67 A. D. 504, where they resided in Boston, Baltimore and Chicago, respectively — in both of which cases an allegation that said defendants could not after due diligence be found in New York, because of non-residence or for no reason at all, was held suffi- cient. What constitutes distant residence has never been carefully considered. The practical tests of time, ex- pense and difficulty of travel have never been applied; nor has the substantial difference between a remote farm or mountain and a busy city ever been recognized. The tendency has been clumsily to measure by states as units. The following places have been held so far distant that residents thereof could not be expected to be found in New York, and the general allegation of due diligence was sufficient proof of effort to serve them therein: Germany ;^^ Great Britain and Ireland ;^^ Alaska; ^^ 51. Evans v. Weinstein, 124 A. D. 316, affd. 195 N. Y. 549, with- out opinion. 52. Wunnenberg v. Gearty, 36 Hun, 243; Sinnott v. Ennis, 120 A. D. 874. 53. Union Trust Co. v. Driggs, 62 A. D. 213. 90 Service of Process. Washington State; ^* Portland, Ore. ;^' San Francisco, Cal.;^® San Antonio, Tex.;" Victor, Colo.; Lehigh, lowa;^* Greeaville and Union Court House, S. C.^^ To this list may be added with considerable hesitation To- ledo, Ohio,^" on the ground that Ohio, not being an ad- joining state, is therefore a distant state — not a con- vincing reason. As a cautionary signal against pushing these decisions too far is a dictum in Seidenburg v. Pesce, 140 A. D. 232, stating that an affidavit that A and B reside in Ire- land and have' never visited New York is plainly insuffi- cient — that there is no authority to the effect that mere distance of residence excuses diligent effort to serve in New York. The following places have been held so near to New . York as to raise no inference of inability to serve within the state : Greenwich, Conn, f^ New London, Conn. ; ^^ Connecticut, generally ;^^ Jersey City and Plainfleld, N. J. f* Elizabethport, N. J. f^ Vosburg, Wyoming Co., Pa.^^ Consequently in the cited cases affidavits containing no probative statements of diligent effort to serve were held insufficient. Of course such non-residence may in fact 54. McLaughlin v. McCann, 123 A. D. 67 (dictum). 55. Andrews v. Borland, 10 S. E. 396. 56. Stanton v. Eastman, 63 Misc. 385. 57. Manhattan Savings Institution v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 58. Sunswick Land Co. v. Murdock, 129 A. D. 579, afEd. 199 N. Y. 517, without opinion. 58. Same. 59. Van Wyck v. Hardy, 4 Abb. Dec. 496. 60. Stanton v. Eastman, 63 Misc. 385. 61. Reid v. Johnson, 121 Supp. 750. 62. Reynolds v. Cleary, 61 Hun, 590. 63. Argall v. Baehrach, 18 W. D. 267. 64. Kennedy v. Lamb, 182 N. Y. 228, rvsg. 102 A. D. 429. 65. Seidenberg v. Pesce, 140 A. D. 232. 66. Lewine v. Gerardo, 60 Misc. 261. Service by Publication. 91 be accompanied by continuous absence from the state, which can be satisfactorily shown; as where defend- ants, a woman and three infants living in Jersey City, were personally known to plaintiff, who knew their movements and that they had no place of business in New York and frequented no place therein where sum- mons could be served on them."^ § 103. Due Diligence. — One of the most diflficult problems is the question of effort to serve — What ful- fills the statutory requirements of due diligence? In general it may be said that the essential allegations are probative statements of fact from which diligent effort to serve may logically be concluded. The repetition of the statutory phrase, that plaintiff has been and will be unable with due diligence to serve said defendant within the state of :tJew York adds nothing; it amounts to no more than affiant's personal opinion, or at best a conclu- sion of fact.''^ The earlier cases were liberal in requiring but little show of diligence where defendant was known to reside at a distance;^* and were more than liberal in holding places no more remote than Paterson, N. J., sufficiently "distant" to excuse extended effort.'^" It has even been held that an allegation that defendants reside and now are at Philadelphia, Pa., and Danbury, Conn., respectively, excuses further effort to serve within the state.^^ So of a-n iiifant resident in Middletown, Conn. ''2 The allegation of due diligence was then 67. Crouter v. Crouter, 133 N. Y. 55 (dictum). 68. Evans v. Weinstein, 124 A. D. 316, affd. 195 N. Y. 549, with- out opinion. 69. Wunnenberg v. Gearty, 36 Hun, 243; Van Wyck v. Hardy, 4 Abb. Dec. 496. 70. Kennedy v. N. Y. Life Ins. & Trust Co., 101 N. Y. 487. 71. Chase v. Lawson, 36 Hun, 221. 72. Walter v. De Graaf, 19 Abb. N. C. 406. 92 Service of Peooess. regarded somewhat literally as a statement of fact upon which a prosecution for perjury could be found- ed;''' and the tendency was to require but little proof of effort to serve residents even of near-by cities like Hoboken, N. JJ* The cases never went so far as to support an order based merely on non-residence, even though extremely distant, with no allegation of present whereabouts or effort to serve. '^ With the improvement of transit facilities the courts became stricter than they had been, recognizing the fact that suburban residents, though living in another state, often visit the metropolis. It is now unquestionably nec- essary to show diligent effort to serve residents of the neighboring New Jersey, Connecticut and Pennsyl- vania cities, or an excuse for not doing so.''® The alle- ' gation that plaintiff will be unable with due diligence to serve defendants in New York is ignored in the most recent cases; and the court of appeals may be ex- pected to adhere to its new policy of demanding pro- bative facts instead of quotations from the statute. § 104. Information and Belief. — It was early estab- lished that affidavits on information and belief, though not disclosing the sources of information, were ade^ quate.'''' It is not therefore of much consequence that this doctrine has been questioned at special term in an opinion which fails to cite the court of appeals decision 73. Miele v. Deperino, 135 N. Y. 618; see opinion of CuUen, J., at special term. 74. Seiler v. Wilson, 43 Hun, 629. 75. Cook V. Farren, 34 Barb. 95; Bix;by v. Smith, 3 Hnn, 60; Argall V. Bachrach, 18 W. D. 267; Reynolds v. Cleary, 61 Hun, 590. 76. Kennedy v. Lamb, 182 N. Y. 228, rvsg. 102 A. D. 429; Lewine v. Gerardo, 60 Misc. 261; Seidenberg v. Pesce, 140 A. D. 232. 77. Van Wyck v. Hardy, 4 Abb. Dec. 496; Steinle v. Bell, 12 Abb. Pr. N. S. 171; Wichman v. Asehpurwis, 55 Super. 218. Service by Publication. 93 above mentioned f^ but the best practice calls for the dis- closure of the sources of information.''^ Inquiry among defendant's relatives and friends is a natural source of information regarding his whereabouts.*" § 105. Sufficiency of Affidavits. — Where the applica- tion is made under the Code of Civil Procedure, § 438, a sheriff's certificate of inability to serve is no proof un- less incorporated in an affidavit.*^ An allegation of inquiry among several persons who said that H resided at Hamilton, Ont., is not equivalent to an allegation on information and belief that H so resides, for deponent may have had information to the contrary.*^ An affidavit entitled in another case may be used.^^ Where the affidavit in a foreclosure action alleges positively that the infant defendant A resides with her mother at New Bedford, Mass., and is now there, and plaintiff will be unable to serve her in New York, the court acquires jurisdiction to order service by publica- tion, and the title tendered under sale therein cannot be impeached by an affidavit that A was in New York when the order was granted.** Inquiry by plaintiff's attorney among T's acquaint- 78. Barnard v. Heydrick, 49 Barb. 62. 79. Chase v. Lawson, 36 Hun, 221; Evans v. Wienstein, 124 A. D. 316 ; Piser v. Loekwood, 30 Hun, 6. 80. Andrews v. Borland, 10 S. R. 396; Coffin v. Lesster", 36 Hun, 347, affd. 110 N. Y. 645, -without opinion. 81. Empire City Savings Bank v. Silleck, 98 A. D. 139, affd. 180 N. Y. 541, without opinion. Code Civ. Proc, § 435, expressly pro- vides that the sheriff's certificate shall be evidence on applications for substituted service and where defendant's residence is un- known. The distinction is perhaps a mere legislative inadvertence reinforced by strict judicial interpretation. 82. Same. 83. Barnard v. Heydrick, 49 Barb. 62. 84. Syracuse Savings Bank v. Burton, 6 C. P. 216. 94 Service of Process. ances and inability after due diligence to find him in New York, accompanied by the affidavit of T's sister that he left New York seven years ago and had not been heard of since, are sufficient basis for ah order of pub- lication.^^ - Affidavits that C and D reside at Hoboken, N. J., and that J on various occasions called at places where they were most likely to be found and tried unsuccessfully to serve them, were held sufficient,^" — without any alle- gation of due diligence. An affidavit by plaintiff's attorney alleging diligent search and inability to get information, but not showing why plaintiff did not make the affidavit, is insufficient, for it does not preclude knowledge by plaintiff himself.*' Even in an action for the registration of title, where the statute plainly intends to modify the technical rules of judicial construction, the affidavits must show facts on which to base the order of publication.** § 106. Order. — The order for publication must be a judge's order ; a court order gives no jurisdiction over de- fendants served thereunder.*' It may be based on a verified complaint not presented to the judge, provided the complaint is on file.'" The omission to recite the judge's satisfaction has been held an immaterial defect, as it may be supplied by presumption derived from the making of the order f^ 85. Brenen v. North, 7 A. D. 79. 86. Stephan v. Butcher, 107 A. D. 617. 87. Piser v. Loekwood, 30 Hun, 6. 88. Meighan v. Rohe, 166 A. D. 175 ; Real Prop. Law, § 385. 89. Sehumaker v. Grossman, 12 W. D. 99; Crosby v. Tiedford, 13 Daly, 150. 90. McCuUy v. Heller, 66 How. Pr. 468. 91. Barnard v. Heydrick, 49 Barb. 62. There were infant de- fendants in this case; whether it would be regarded as an author- ity under the present strict rule that nothing is presumed against an infant may be questioned. Service by Publication. 95 or from the recital of proper aflldavits.^^ The omis- sion to recite an essential affidavit is not fatal where the endorsements of the papers on file show that such> affidavit was actually presented to the judge on applica- tion for the order.'^ The omission to recite that the papers designated are most likely to give notice is im- material when the papers so designated are those re- quired by statute.'* An order signed by a judge, though in the form of a court order and bearing a special term caption, will be regard as a judge's order.^^ The question whether the judicial officer who signed the order acted as court or as judge is one not of metaphysics, but of common sense.'^ A clerical error describing defendant Alfred Z (cor- rectly named in the caption ) as " Albert " Z, in the body of the order, is immaterial." The case of Barnard v. Heydrick, 49 Barb. 62, al- ready referred to as doubtful authority, holds that the order is effectual from the time it is granted and may be acted on before it is filed ; '* while Fink v. Wallach, 109 A. D. 718, reversing 47 Misc. 247, says (obiter) that failure to file is a jurisdictional defect which cannot be corrected nunc pro tunc. In the latter case it was held that delivery to the special term clerk pursuant to rule constituted a filing in spite of the clerk's failure to put the papers on file. 92. Green v. Squires, 20 Hun, 15. 93. Manhattan Savings Inst. v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 94. Green v. Squires, 20 Hun, 15. 95. Coffin V. Lesster, 36 Hun, 347, affd. 110 N. Y. 645, without opinion; Waite v. Simons, 121 N. Y. 712; Lowerre v. Owens, 14 A. D. 215; Volz v. Steiner, 67 A. D. 504. 96. Eegan v. Traube, 16 Daly, 152. 97. McCully v. Heller, 66 How. Pr. 468. 98. Silleek v. Heydrick, 2 Abb. Pr. N. S. 57. 96 Seevice of Process. § 107. Mailing.— The case of Walter v. DeGraaf, 19 'Abb. N. C. 406, lays down the extraordinary proposition that failure of the order to specify the post oflBce where the papers are to be mailed is a fatal defect — as if it made any difference to defendant whether his mail started from Hoboken or New Rochelle! Defendant D was served by publication, and the proper papers were mailed to him addressed in care of A, No. 3 E. 41 St, New York. It appeared from the affi- davits that D had gone to Alaska several years before, that his brother J did not know where D then was but that a letter addressed as above would reach him. The service was held sufficient.'^ Service is defective where the papers are mailed not to defendant's residence, as directed by the order, but to another place. ^"^ It must clearly appear from the order that the mail- ing is to precede publication by all but the first day. A direction to mail " at the same time " with publication would permit mailing at any time within the period, and is insufficient.^"^ Under § 135 of the Code of Pro- cedure a little more leeway was allowed. The require- ment of deposit " forthwith " in the mail was inter- preted as without unnecessary delay ; ^°^ but fifteen days' delay was fatal.^"^ It is important for the practitioner to remember, and to warn his clerks, that mailing in a post box or mail chute does not comply with an order for deposit in the post office. So much importance does the judicial mind attach to this trivial detail that it has been spoken of 99. Union Trust Co. v. Driggs, 62 A. D. 213. 100. Smith V. Wells, 69 N. Y. 600. 101. Reynolds v. Cleary, 61 Hun, 590. 102. Van Wyck v. Hardy, 4 Abb. Dec. 496. 103. Back V. Crussell, 2 Abb. Pr. 386. Service by Publication. 97 as a matter of due process of law, raising a question under the Constitution of the United States."* Proof of mailing was held to have been suflflciently made by an affidavit that W deposited a copy of the summons and complaint directed to defendant S at Belleville, N. J., and paid postage thereon, there being regular mail connection between New York and Belleville."^ But that was long ago under the Code of Procedure. Affi- davit of mailing " on or about " a certain day is not suf- ficient."" As mentioned above,^*" mailing is unnecessary where defendant 's residence is unknown, and also where he is served personally outside the state. § 108. Publication. — The order directed publication in two papers once a week for six weeks. It was held that the two notices need not be concurrent. Publica- tion in one paper from June 9th to July 14th and in another from July 9th to August 14th was upheld:"^ Nor does it have to be made every seventh day."' A publication which complied with the statutory re- quirements was held sufficient in the early case of Totten V. Stuyvesant, 3 Edw. 500, in spite of a care- lessly drawn order prescribing more. Publication is suspended by plaintiff's death."" § 109. Notice. — The notice required to be attached to the summons is sometimes the object of a rather cap- tious criticism which the courts have not encouraged. 104. Korn v. Lipman, 201 N. Y. 404; Gay v. Ulrichs, 136 A. D. 809. 105. Steinle v. Bell, 12 Abb. Pr. N. S. 171. 106. Smyth v. Rowe, 4 Monthly L. Bull. 60. 107. Ante, §§ 99-100. 108. Herbert v. Smith, 6 Lans. 493. 109. Steinle v. Bell,^2 Abb. Pr. N. S. 171. 110. Reilly v. Hart,''l30 N. Y. 626, affg. 55 Hun, 465. 98 Seevice of Process. A notice, subscribed under the summons, that the com- plaint was filed in the City Hall, Brooklyn, Kings Co.,^ was objected to because it was not contained in sum- mons and did not show in what state the complaint was filed. The general term said that the object of the stat- ute had been intelligibly accomplished.^^^ The court of appeals affirmed the decision on the technical ground that it was not clear that the statutory provision in ques- tion applied at all, and in any event it did not require the name of the state to be given."^ The omission of the words " without the state " from the notice was held an immaterial clerical error."* Statement that the summons is served outside the state,, when in fact it is published, is unimportant,^^* as is the failure to direct same to defendants by name."^ § 110. Summons. — The summons must specify when and where the complaint is filed,"" and must contain the name of the defendant on whom it is served."'' It need not contain the names of the other defendants."* The omission of the names of several defendants from the summons on file is an amendable mistake."' The summons as published was dated at New York and stated that the complaint was filed there, but did not name the city in which was the office of plaintiff's attorney; held, the office address is fairly shown to be 111. Cook V. Esleeck, 8 Abb. Pr. 170. 112. Cook V. Kelsey, 19 N. Y. 412. 113. McCuUy V. Heller, 66 How. Pr. 468. 114. Loring v. Binney, 38 Hun, 152, affd. 101 N. Y. 623, without opinion. 115. Same; Close v. William M. Calder Co., 139 A. D. 175, affd. 203 N. Y. 590, without opinion. 116. Smyth v. Rowe, 4 Monthly L. Bull. 60. 117. Bowler v. Ennis, 46 A. D; 309. 118. Brenen v. North, 7 A. D. 79. 119. Van Wyck v. Hardy, 4 Abb. Dee. 496. Jurisdiction. 99 in New York and tlie requirements of the statute are substantially complied with.^^" To object to a summons as published because not des- ignated as an " amended " summons is hypercritical.^^^ 4. Procedure. (Affecting Titles.) § 111. The procedure of most actions and proceedings affecting real estate is sa minutely and so unsystematic- ally regulated by statute that it is difficult to say that the decision of a question in any one action creates a precedent for a different action. Some principles seem to be established, however, as generally applicable; and those are collected in this subdivision. In practice the cases collected under the title of the particular ac- tion in hand should also be consulted, for no accurate classification into general and special is possible. § 112. Jurisdiction. — If the court has jurisdiction of the parties and subject matter of the action wherein sale is decreed, purchaser will acquire a title that cannot be questioned by any part to the suit.^ The court cannot acquire jurisdiction over the state as a party, either by service or by appearance, unless plain- tiff has statutory authority to sue the state.^ Nor does an infant intervening without authority come within the court's jurisdiction.* The superior court acquired jurisdiction where the parties appeared or were served within the county.^ The 120. Same. 121. Manhattan Savings Inst. v. Norton, '26 Hun, 474, affd. .89 N. Y. 607, on opinion below. 1. Blakely v. Calder, 15 N. Y. 617, affg. 13 How. Pr. 476. 2. Smith V. Doe, 111 Supp. 525. 3. Van Williams v. Elias, 106 A. D. 288. 4. Schmalholz v. Polhaus, 49 How. Pr. 59. 100 Judicial Sale. surrogate upon an application alleging jurisdictional facts has authority to decide whether he has jurisdiction in the premises, and his decision cannot be attacked col- laterally.^ The jurisdiction of the Connecticut probate court is limited, and as in this state, the statutes regulat- ing same must be strictly complied with." § 113. Parties. — Necessary. — All persons having an interest in the premises must be joined as parties in or- der to give clear title. This includes contingent remain- dermen, in all actions except foreclosure,' and lienors such as judgment creditors.' It does not include one holding a mere " possibility of an interest."' Tenants whose terms have expired at the time of the sale are not necessary parties.^" § 114. Representation. — A person acting in fiduciary capacity represents those for whom he is acting, and if he has taken title, their presence in the action is un- necessary. Such representatives include a receiver,^^ and an assignee in bankruptcy.^^ Where there is a valid express trust it will be executed by the supreme court as trustee without the appointment of any indi- vidual and without being itself joined in the action by 5. O'Connor v. Huggins, 113 N. Y. 511. 6. Taylor v. Chamberlain, 6 A. D. 38. 7. New York Security & Trust Co. v. Sohoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below; Wilson v. White, 109 N. Y. 59. Matter of Bull, 45 Barb. 334, did not apply this rule to the devisees of a contingent remainderman. 8. Morris v. Mowatt, 2 Paige, 586. 9. Van Williams v. Elias, 106 A. D. 288. 10. Rigney v. Coles, 6 Bosw. 479. 11. Graham v. Lawyers' Title Ins. Co., 20 A. D. 440. On this topic, see also Foreclosure, H 163-166, and Partition, ^ 149-156. 12. Daly v. Burchell, 13 Abb. Pr. N. S. 264. Parties. 10,1 name as a party .^ Where the trust is not valid the trustee is not a necessary party .^^ A' party acting in representative capacity and served as such is not thereby affected individually.^^ If, hav- ing no individual interest he is served individually, his interest as fiduciary is " probably "bound by the judg- ment.^® Where there is equitable conversion the heirs are not necessary parties; the real estate is considered as per- sonalty in the hands of the executor or trustee." Unborn persons are also represented when every liv- ing person through whom they can claim is made a party ,^* provided the persons in esse include at least some one having a vested estate of inheritance. The life tenants cannot represent remaindermen none of whom are in esse}^ Failure to join such living persons means failure to bind the after-born, and renders title defective.^"* § 115. State. — The state may not be sued except by express statutory authority.^^ Where there is a question of escheat, the state is not bound by any judgment in an action or proceeding to which it was not a party.^^ 13. Kirk V. Kirk, 137 N. Y. 510. 14. Steinhardt v. Cunningham, 130 N. Y. 292, affg. 55 Hun, 375. 15. Darrin v. Hatfield, Seld. Notes, 38, rvsg. 4 Sandf. 468. 16. Wagner v. Hodge, 34 Hun, 524, affd. 98 N. Y. 654, without opinion. 17. Stephan v. Butcher, 107 A. D. 617; McLean v. Ladd, 66 Hun, 341. 18. Kirk v. Kirk, 137 N. Y. 510; Matter of Asch, 75 A. D. 486. 19. Guernsey v. Van Riper, 126 A. D. 368. 20. Downey v. Seib, 185 N. Y. 427, affg. 102 A. D. 317. 21. Smith V. Doe, 111 Supp. 525. 22. Hicks V. Cochran, 4 Edw. 107; Lowenfeld v. Ditchett, 114 A. D. 56. 102 Judicial Sale. § 116. Attorneys. — The authority of an attorney who appears for a non-resident defendant not served should be shown, for the judgment would be void if such ap- pearance were unauthorized.^^ Substitution of attorneys should be made by order of court, so that there may be record evidence of the right to act.^* Such order may, however, be entered nunc pro tunc upon purchaser's objection to title.^^ The attorney in one suit has no prima facie authority to consent to entry of judgment in another. Where judgment creditors of the owner of the equity, omitted in foreclosure, appeared after decree therein and their attorneys consented that the decree of foreclosure stand against them, it was held that the judgments were not cut off.^^ § 117. Lis Pendens.— E^/fec*.— Under the Act of 1840, chap. 342, long since repealed, judgment creditors were effectiyely barred in foreclosure by the filing of the Us pendens without being joined as parties.^ The modern function of the lis pendens is simply to bind by constructive notice. When duly filed the lis pendens fixes the title for the purpose of the litigation in ques- tion. Neither conveyance nor lien can be made effec- tive after that date; or to reverse the idea, a subse- quent purchaser or lienor is cut off. The effect is the same as against a grantee prior in fact to the lis pen- dens, whose deed was not recorded until later.^^ But 23. McKenna v. Duffy, 64 Hun, 597. 24. Same. 25. Krekeler v. Thaule, 49 How. ,Pr. 138. 26. Lyon v. Lyon, 67 N. Y. 250. 27. Wood V. Oakley, 11 Paige, 400. 28. Ostrom v. MeCann, 21 How. Pr. 431; Connor v. Connor, 20 Civ. Proe. 308; Spring v. Sandford, 7 Paige, 550. Lis Pendens. 103 where there was no obligation upon grantee to record his instrument, he was not cut off.^' Its vitality continues after judgment until the time to appeal has expired.^" As carried to its logical effect in Bend v. Ruckman, 17 W. D. 153, the result is to extend a vendee's time for performance until the appeal, taken at the last moment, is disposed of and a final judgment entered from which no farther appeal lies — in this case a matter of almost four years. § 118. Time. — At an early date such notice took effect only from the date of service of process on each party respectively.^^ Under the Code of Procedure, § 132, it was effective from the time of filing the complaint,^^ or the service of summons upon any defendant.^' It is now provided by statute that the notice dates from the filing of the lis pendens provided personal service of the summons is made upon any defendant within sixty days thereafter or service by publication is begun with- in that period.^* § 119. Form. — A Us pendens need not recite in its caption the names of all parties intended to be bound. It may be informal or irregular, as in a misdescription of the property in one place (same being in anpther place correctly described), without losing its validity.'^ 29. New York Life Ins. etc. Co. v. Bailey, 3 Edw. 416. 30. Weyh v. Boylan, 62 How. Pr. 397, affd. 63 How. Pr. 72, on opinion below. 31. Tate v. Jordan, 3 'Abb. Pr. 392; Farmers' Loan & Trust Co. V. Dickson, 17 How. Pr. 477; Earle v. Barnard, 22 How. Pr. 437. 32. Weeks v. Tomes, 16 Hun, 349, affd. 76 N. Y. 601, on opinion below. A nunc pro 'tunc filing could not cut off an intermediate equity. 33. Fuller v. Seribner, 76 N. Y. 190, aflEg. 16 Hun, 130. 34. Code Civ. Proc, 5 1670. 35. Totten v. Stuyvesant, 3 Edw. 500. 104 Judicial Sale, It may be amended.^^ There is, however, no require- ment for the filing of an amended lis pendens after amendment of" the complaint, unless necessary to cut off a specific purchaser or encumbrancer." § 120. Filing. — When the lis pendens is filed one day j and the complaint the next, the statutory provision [ requiring them to be filed together is complied with.^^ j Even an interval of thirteen days does not, in the , absence of intervening claims, impair title.^^ In any i case the filing of an amended complaint and lis pendens cures such irregularity.^" § 121. Process and Appearance. — Form. — Process entitled in the proper court and designating the place of hearing as "in this court " is sufficient in form." An error in the title of the court is not fatal.*^ A printed signature is sufficient.^' Where the order to show cause is made returnable one day later than provided by statute, the error is not substantial.** A summons as published contained only the names of the defendants being served by publication. It was held that the omission of the other defendants was im- material.*^ 36. Plaut V. Moores, 142 N. Y. 646. 37. Waring v. Waring, 7 Abb. Pr. 472. 38. Benson v. Sayre, 7 Abb. Pr. 472 n. 39. Brenen v. North, 7 A. D. 79. 40. Daly v. Burchell, 13 Abb. Pr. N. S. 264. 41. Rigney v. Coles, 6 Bosw. 479. 42. Watson v. Church, 3 Hun, 80. 43. Barnard v. Heydrick, 49 Barb. 62. The earlier ease of farmers' Loan & Trust Co. v. Dickson, 17 How. Pr. 477, declared such signature a nullity; but the validity of a printed summons is now universally conceded. 44. O'Connor v. Huggins, 113 N. Y. 511. 45. Brenen v. North, 7 A. D. 79. I Process and Appearance. 105 § 122. Names. — A defendant was described in the summons as " K." Purchaser objected that K had not been designated by his true name or by a fic- titious name or by description; but it was held that the defect was a mere irregularity.^^ A defendant described in the summons as " Letitia " signed a petition as " T. Letitia." It was held that there was nothing to show that the name in the sum- mons was not substantially correct." When the cor- rect person is served and fairly apprised that she is intended as defendant, an error in name, as ' ' Emma ' * for " Mary," may be corrected ex parte}^ § 123. Amendment. — Process is amendable,^' and the amendment may be made nunc pro tunc. If the sum- mons as served was in the form directed by the order of amendment, the service is good.^" So where an order for service by publication directed the mailing of no- tice of object of action, but the complaint was actually mailed as required by the nunc pro tunc order.^^ A party may not himself change the return date of an order to show cause.^^ § 124. Appearance. — An appearance by attorney is equivalent to service of process within the designated county.^^ 46. Von Hatten v. Seholl, 1 A. D. 32. 47. Varian v. Stevens, 2 Duer, 635. 48. Stuyvesant v. Weil, 167 N. Y. 421, rvsg. 41 A. D. 551. 49. Watson v. Church, 3 Hun, 80; Stuyvesant v. Weil, 167 N. Y. 421, rvsg. 41 A. D. 551. 50. Manhattan Savings Inst. v. Norton, 26 Hun, 474, afld. 89 N. Y 607, an opinion below. 51. Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402, affg. Ill A. D. 578., 52. Pinckney v. Smith, 26 Hun, 524. 53. Schmalholz v. Polhaus, 49 How. Pr. 59. 106 Judicial Sale. Citation of a party by the wrong name is cured by his appearance and disclosure of his true name.^* § 125. Pleadings. — Complaint. — Failure of a com- plaint to allege all the detail required by statute, as the interests of the several parties in partition and whether there are encumbrances, is a mere irregular- ity, immaterial after judgment.^^ After judgment by default in foreclosure, not more favorable than plain- tiff was entitled to on the facts alleged, plaintiff might amend the complaint so as to demand the judgment rendered.^^ In a foreclosure action after filing the original com- plaint, plaintiff added H, a tenant, as a party and cor- rected the name of a defendant, F. Entitling his plead- ing then an " amended and supplemental complaint," he served it upon defendant C, the owner of the equity. Purchaser contended that such pleading was unauthor- ized and void and hence C was not cut off; and plaintiff upon argument did not defend his practice as regular. It was held (without opinion) that the title was marketable.'^ § 126; Answer. — Failure of one defendant to have his answer signed by counsel was held by the chan- cellor in Sears v. Hyer, 1 Paige, 483, not to affect the validity of the decree. 54. Matter of Georgi, 35 Misc. 685. 55. Noble v. Cromwell, 26 Barb. 475, affd. 3 Abb. Dec. 382. 56. Brenen v. North, 7 A. D. 79. 57. Langdon v. Schiff, 189 N. Y. 548. In spite of the fact that the wording of the body of the complaint was not changed, plain- tiff's practice seems to have been strictly correct. He added new matter by alleging that the tenant, H, was a subsequent claimant and he made a change as to defendant, F. Hence his complaint became both supplemental and amended. Guardian ad Litem. 107 Failure to answer admits the truth of the allegations of the complaint.^^ § 127. Guardian ad Litem. — Service of Infants. — Under the old chancery practice it was not necessary to serve infants with process before applying for ap- pointment of guardian ad litem; ^^ and such rule was continued for many years under the Code in partition,®" but not in foreclosure.^^ In 1840 it was not necessary in partition to appoint a guardian ad litem for a non-resident infant defendant served by publication who had not appeared.^^ § 128. Application. — Under the old practice applica- tion for appointment of guardian ad litem could be made by a general guardian,^^ and could be made by unverified petition.** Defective verification is now a curable irregularity.*^ Service of supplemental summons and complaint on an infant under fourteen and upon his general guar- dian has been pronounced sufficient notice to pave the way for appointment of a guardian ad litem.^ Where the infant was in fact under fourteen and properly served as such, it is immaterial that the peti- tion alleged him to be over fourteen.*^ 58. Wallace v. Hanna, 11 W. D. 213. 59. Varian v. Stevens, 2 Duer, 635. 60. Gotendorf v. Goldschmidt, 83 N. Y. 110; Disbrow v. Folger, 5 Abb. Pr. 53; Althause v. Radde, 3 Bosw. 410. 61. Glover v. Haws, 19 Abb. Pr. 161 n.; Ingersoll v. Mangam, 84 N. Y. 622, affg. 24 Hun, 202. 62. Clemens v. Clemens, 60 Barb. 366, affd. 37 N. Y. 59. 63. Althause v. Radde, 3 Bosw. 410. 64. Disbrow v. Folger, 5 Abb. Pr. 53. 65. Baumeister v. Demuth, 84 A. D. 394. 66. Flanagan v. Fox, 6 Misc. 132, overruling 3 Misc. 365, rvsg. 5 Misc. 589, affd. 144 N. Y. 706, on opinion below. 67. Baumeister v. Demuth, 84 A. D. 394, rvsg. 40 Misc. 22, affd. 178 N. Y. 630, without opinion. iOS Judicial Sale. Ttere is no objection to serving with the summons and complaint notice of intent to apply for guardian ad litem; an appointment of such guardian after the lapse of twenty days will be valid.** After service by publication of a non-resident infant and his default it is not necessary to give him notice of application for appointment of guardian ad litem.^^ An infant over fourteen served by publication must wait until the sixty days have run and publication is complete before applying for guardian ad litem; and still more must such application await the end of pub- lication in the case of an infant under fourteen.'" § 129. Qualifications and Consent. — The mere absence of proof that the guardian is duly qualified is not a jurisdictional defect. Additional proof, as that his in- terest is not adverse to the infant's, can be supplied by affidavit.'^ Nor is actual error in determining such qualifications a jurisdictional defect. After judgment the parties are bound and the sale is not open to col- lateral attack.'^ Appointment of the clerk of plaintiff's attorney as guardian ad litem of infant defendants is objection- able,''' as is the appointment of a person necessarily hostile in interest to the infants.''* A purchaser ob- jecting upon such ground may be relieved. 68. Hoar v. Hoar, 143 A. D. 941. 69. Piatt V. Finck, 60 A. D. 312. 70. Crouter v. Crouter, 133 N. Y. 55. In reaching this conclu- sion the court ignored the case of Waite v. Simon, 121 N. Y. 712, in which two years earlier it had decided that an infant over 14 need not wait. 71. Disbrow v. Folger, 5 Abb. Pr. 53 ; Herbert v. Smith, 6 Lans. 493; Bogert v. Bogert, 45 Barb. 121. 72. Parish v. Parish, 175 N. Y. 181, rvsg. 77 A. D. 181. 73. Lake v. Kessel, 64 A. D. 540. 74. Hecker v. Sexton, 43 Hun, 593. Interlocutory Regulations. 109 The omission of an acknowledgment from the guar- dian's consent is a trivial irregularity which can be cured by amendment nunc pro tunc.''^ § 130. Order. — Under the chancery practice the exact form of the order, whether nisi or peremptory, was not material.''^ Failure to serve a copy of such order as therein directed is not material." § 131. Answer. — The omission of a guardian's an- swer is a mere irregularity. It is usually formal; and the failure to file it can be cured nunc pro tunc.''^ Where, however, it does not even appear that the summons and complaint were served upon him, the record fails to show that the infants have had an op- portunity to defend, and purchaser may be relieved.^' § 132. Interlocutory Regulations. — Amendment. — Tb.9 court has power to order amendment of process,^* pleadings,'^ judgment,^^ orders and proceedings in gen- eral.^^ Whether the irregularities in a petition are amended by order or cured by a new petition is not a 75. Tobin v. Carey, 34 Hun, 431; Schell v. Cohen, 55 Hun, 207. 76. Concklin v. Hall, 2 Barb. Ch. 136. See, however, Code Civ. Proc, § 1535, as to order in partition. 77. Barnard v. Heydrick, 49 Barb. 62; Silleck v. Heydrick,'' 2 Abb. Pr. N. S. 57. 78. Althause v. Radde, 3 Bosw. 410; Bogert v. Bogert, 45 Barb. 121. 79. Kennedy v. Arthur, 18 Civ. Proc. 390. 80. Watson v. Church, 3 Hun, 80. 81. Althause v. Radde, 3 Bosw. 410. 82. Brown v. Beckmann, 53 A. D. 257; Brenen v. North, 7 A. D. 79. 83. Baumeister v. Demuth, 84 A. D. 394; Matter of Trustees of N. Y. etc. School, 31 N. Y. 574; Doremus v. Doremus, 66 Hun, 111. 110 Judicial Sale. matter of substance.** Amending without any order at all is a mere irregularity which is waived even as to infants by the parties retaining the amended papers.*^ An irregular amendment cannot be taken advantage of by any party to the prejudice of the decree.*^ § 133. Notice: — A party in default is not entitled to notice.^ A provision in the order of reference that upon the coming in of the report the decree will be entered is sufficient notice of application for judgment.^^ A month in law is a lunar month or twenty-eight days, unless otherwise expressed.*^ A requirement of publication " for four weeks " is satisfied by publica- tion once a week for four weeks in a daily paper.^" What constitutes a "newspaper" was discussed in Williams v. Colwell, 18 Misc. 399, affd. 14 A. D. 26, on opinion below. The periodical in question was pub- lished twice daily (except Sundays) in B, where its circulation was 1000 out of a total circulation of 4100; it printed detailed legal records of E County, stock and produce reports, time tables, news of financial and mer- cantile matters and local affairs; and also carried sev- eral columns of general telegraphic and sporting news and many miscellaneous advertisements; but it was 84. Baumeister v. Demuth, 84 A. D. 394, rvsg. 40 Misc. 22, affd. 178 N. Y. 630, without opinion. 85. Hoar v. Hoar, 143 A. D. 941. 86. Totten v. Stuyvesant, 3 Edw. 500. 87. Brown v. Beckmann, 53 A. D. 257. 88. Manhattan Savings Inst. v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 89. Loring v. Hailing, 15 Johns. 119. 90. Rigney v. Coles, 6 Bosw. 479. Interlocutory Regulations. Ill sold only by subscription. The publication was held to come within the dictionary definition and statutory meaning of a " newspaper.'' It had already been de- cided that the fact that the paper was not well calcu- lated to give general notice was not a valid objection."^ § 134. Record. — Absence of proof of service of sum- mons and complaint on a guardian ad litem who has not answered, although he consented to the application for judgment, is objectionable; for such record does not show that the infants have had an opportunity to de- fend.^^ The allegation in an affidavit of service that deponent personally served defendant with summons and complaint on the day stated is the essential one; absence of further particulars is a mere irregularity .'' Where the record remains defective for many years because of such omissions, and purchaser who refused to complete has made no effort to have it perfected, the sale may be rescinded on plaintiff's application.'* An adjournment need not be recited nor shown; it will be presumed.'" Failure to annex documentary evidence to a ref- eree 's report in foreclosure is not a fatal defect.'^ § 135. Costs. — An improper provision in the judg- ment for such payment of costs as unduly to charge same upon the shares of unborn infants may be ob- jected to by purchaser." 91. Wake v. Hart, 12 How. Pr. 444. 92. Kennedy v. Arthur, 18 Civ. Proc. 390. 93. Althause v. Eadde, 3 Bosw. 410. 94. Parisen v. Parisen, 1 T. & C. 642. 95. Rigney v. Coles, 6 Bosw; 479. 96. Manhattan Savings Inst. v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 97. 'Toole v. 'Toole, 39 A. D. 302. 112 Judicial Sale. § 136. Judgment and Decree. — Entry. — ^When the^ guardian ad litem answers there is no need to wait' twenty days after his appointment before entering "judgment.^* , A judgment may not be entered establishing facts of pedigree without any evidence.'^ No decree can be entered against an infant who has not appeared or answered and for whom no guardian ad litem has been appointed.^"'' Failure for twenty years to proceed from interlocu- tory to final judgment raises a presumption of settle- ment or termination of the interests under adjust- ment."i § 137. Contents. — An irregularity in form, such as the failure in partition to fix the rights of legatees and creditors of a deceased owner whose share is ordered paid to the county treasurer, can be objected to only- by a party, and upon such objection can be amended.^"^ A decree cannot ordinarily be more favorable to plaintiff than the demand in the complaint;^"' but it has been held that where upon facts showing a right to foreclosure the complaint by mistake asks only that a former owner and those claiming under him be barred, the present owner, also a defendant in default, will be cut off and judgment may be entered accord- ingly.!-" A decree extending beyond the authority of the com- 98. Newins v. Baird, 19 Hun, 306. 99. Casey v. Casey, 19 A. D. 219, rvsg. 19 Misc. 272. 100. Kohler v. Kohler, 2 Edw. 69. 101. Port Jefferson Realty Co. v. Woodhull, 128 A. D. 188. 102. Hoar v. Hoar, 143 A. D. 941. 103. Bradley v. Murray, 23 Supp. 809 n.; Wallace v. Naughton, 23 Supp. 809 n.; Hutchinson v. Wall, 56 Super. 104. 104. Mygatt v. Somerville, 23 Supp. 808 ; Brenen v. North, 7 A. D. 79. Notice of Sale. 113 plaint is objectionable as to tbe excess only; its irregu- larity does not affect a sale otberwise valid.^"^ The decree may not, however, deviate from the de- scription in the complaint in order to escape an en- croachment.'^"^ An error of practice in the manner of protecting the interests of contingent remaindermen, as provided in the final judgment, would not affect title.^"'' In an early case the highly technical rule was laid down by one court of appeals judge that a decree as follows was fatally defective: — directing the heirs (all of whom had been previously recited by name) to con- vey, naming them severally with the exception of two infants who were omitted.^"^ § 138. Sale. — Notice. — Under the Revised Statutes it was necessary to advertise all partition sales for six weeks. The provision in the rules permitting sales in New York City on three weeks' notice applied only to cases in which the period was not prescribed by stat- ute.^"® If the proper notice was actually given, a direc- tion in the decree to advertise for a shorter time is a ' ' mere numerical error, ' ' which does not affect title."" The diagram required by the special terra rules of the first district (rule 15) is intended only to show the locality of the property. A purchaser is not entitled to 105. Hutchinson v. Wall, 56 Super. 104, aiifd. 112 N. Y. 675, with- out opinion, sub nom. Hutchinson v. Chapman; Graham v. Bleakie, 2 Daly, 55. 106. King V. Knapp, 66 Barb. 225, affd. 59 N. Y. 462. 107. Rockwell v. Decker, 33 Hun, 343, affg. 5 Civ. Proc. 62. 108. Hyatt v. Seeley, 11 N. Y. 52. 109. Romaine v. McMillen, 5 How. Pr. 318. The provision for short notice in New York and Kings counties has now been incor- porated into section 1678 of the Code. 110. Spring v. Sandford, 7 Paige, 550; Alvord v. Beach, 5 Abb. Pr. 451. 114 Judicial Sale. rely upon it for accurate description; nor is an unin- tentional error therein, though of substantial magnitude, ground for relief.^" An error in the advertisement, omitting a certain per- cel from the description, does not, after the report of sale hag been confirmed upon notice to all parties, in- validate the title. The sale having in fact been held is ratified by the order of confirmation which binds all parties.^^ § 139. Sales Officer. — An outgoing sheriff may com- plete a sale the advertisement of which was duly begun during his term.^^^ Under a statute providing that judicial sales should be made by the sheriff of Kings County instead of a referee, judgment was entered upon the default of a defendant who did not appear directing sale by a referee, and the sale was so made. Held, a mere irregularity, not affecting title. -^^^ But when a defendant who appeared did not consent to the appointment of a referee, such sale was not valid.^^^ § 140. Terms. — The extent to which a purchaser is bound by terms inserted in the agreement of sale with- out the authority of the decree is an open question. In Recor v. Blackburn, 71 Hun, 54, where the premises under partition were sold subject to the claims of J E's heirs, although the decree did not so direct, and there 111. Francis v. Watkins, 72 A. D. 15, affd. 171 N. Y. 682, with- out opinion. The error was a great reduction of the curve of a road. 112. Woodhull V. Little, 102 N. Y. 165. 113. Union Dime Savings Inst. v. Anderson, 83 N. Y. 174, affg. 19 Hun, 310. 114. Abbott V. Curran, 98 N. Y. 665, affg. 20 W. D. 344; Dick- inson V. Dickey, 14 Hun, 617, app. disd. 76 N. Y. 602. 115. Kerrigan v. Force, 68 N. Y. 381. Conduct of Sale. 115 was evidence that J R had left a brother who inherited, the purchaser was relieved. In the later case of Richter V. Kratenstein, 163 A. D. 868, the court adopted the com- mon sense view that the purchaser who had signed terms subject to the right, title and interest of M's heirs could not object because said heirs had an interest. A purchaser who signed terms of sale providing that a certain mortgage might be paid off by him and allowed out of the purchase money cannot complain because said mortgage covers other property also."" A sale subject to transfer tax is good as against a purchaser who signs such terms."'' § 141. Liens. — Covenants affecting title must be dis- closed at the sale."^ § 142. Adjournment. — A referee as an officer of the court has the duty of seeing that the sale is fairly made, and to that end has the power of adjourning same."^ His adjournment is, however, superseded and nullified by an order of court directing an adjournment to a differ- ent date, or that it " stand over."^^° Where the order did not direct notice of the adjourned sale to be posted, nor did the decree direct posting, fail- ure to post is no defect.^^^ An omission to publish notice of the adjournment is a mere irregularity. It is cured by confirmation of the referee's report of sale.^^^ § 143. Parcels. — The sale of more real estate than enough to satisfy the liens is a mere irregularity, not a 116. Matter of Georgi, 35 Misc. 685. 117. March v. Marasco, 165 A. D. 348 (dictum). 118. Conlen v. Rizer, No. 1, 109 A. D. 537. Code ^ 1678. 119. Moir V. Flood, 66 A. D. 544. 120. Herbert v. Smith, 6 Lans. 493. 121. Same. 122. Bechstein v. Schultz, 120 N. Y. 168, affg. 45 Hun, 191. 116 Judicial Sale. nullity. ^^' The sale of two lots together is not even open to objection by the purchaser.^^* Such an irregularity is cured by confirmation of the referee's report or by order directing purchaser to complete; and can also be cured by statute. ^^^ The owner of the equity is the only person who can object.^^" A decree for the sale of the " entire premises " does not prevent a sale in parcels. ^^' Where several lots are put up and sold as a single parcel, the purchaser is not bound to take any, if the title to a single lot proves defective.^^^ Nor where, though the lots are sold separately, the purchaser has bid in two adjoining lots in order to make a single im- provement thereon, and title to one lot proves defect- ive, should he be required to accept the other.^^^ § 144. Purchaser.^ A party may purchase.^^" § 145. Report and Distribution. — The purchaser's title is completed by delivery of the referee's deed. He is not responsijDle for the report to be made thereafter, nor is his title affected by any irregularity therein.^^^ An error in the final judgment in respect to the disposi- tion of remaindermen's shares does not affect title.^^^ 123. Andrews v. O'Mahoney, 112 N. Y. 567. 124. Duer v. Dowdney, 11 S. R. 301. See, however, Foreclosure by Advertisement, J 174. 125. Wallace v. Feely, 10 Daly, 331, affd. 88 N. Y. 646, without opinion. 126. MeBride v. Lewisohn, 17 Hun, 524. 127. DeForest v. Farley, 62 N. Y. 628, affg. 4 Hun, 640. 128. Mott V. Mott, 68 N. Y. 246, modifying 8 Hun, 474. 129. Shriver v. Shriver, 86 N. Y. 575, affg. 24 Hun, 658. 130. Hening v. Punnett, 4 Daly, 543 (foreclosure). 131. Farrell v. Noel, 17 A. D. 319. 132. Rockwell v. Decker, 33 Hun, 343, affg. 5 Civ. Proc. 62; Kirk V. Kirk, 137 N. Y. 510; Ebling v. Dreyer, 149 N. Y. 460, rvsg. 79 Hun, 319. Abatement and Eevivok. 117 When, however, the purchaser has objected on other grounds, the court, finding that the final judgment di- rects payment to the attorneys instead of to the parties, should of its own motion take notice of such improp- riety.^^^ When real questions arise on the confirmation of a re- port and facts are adequately presented to show same, the court is presumed to act consciously in making its decision, which will be held binding on the parties.^'** § 146. Abatement and Revivor. — Upon the death of plaintiff before decision an action abates and a judg- ment entered thereafter without revivor by bringing in the representatives of deceased is void.^^^ The action also abates as to each defendant who dies before decision, and his interests remain unaffected by subsequent judg- ment and sale.^^^ After the filing of the referee's report, the decree con- firming same and ordering sale is a mere formality which is not avoided by the death of a party. Failure then to revive, though at first considered a defect grave enough to render title doubtful,^^^ has since been held a mere irregularity.^'^ After interlocutory judgment revivor 133. McKenna v. Duffy, 64 Hun, 597. It is not entirely clear that such irregularity was considered sufficient ground to relieve the purchaser. 134. Corbin v. Baker, 167 N. Y. 128, affg. 56 A. D. 35. 135. Gerry v. Post, 13 How. Pr. 118; Flanagan v. Fox, 6 Misc. 132, affd. 144 N. Y. 706, on opinion below. 136. Stephens v. Humphryes, 73 Hun, 199, affd. 141 N. Y. 586, on opinion below. 137. Washington Ins. Co. v. Slee, 2 Paige, 365; The death of the master was an additional reason for revivor under the chancery practice. 133. Smith v. Joyce, 11 Civ. Proc. 257. 118 Judicial Sale. is not the proper practice ; instead, final judgment should he entered in the name of the original parties.^^' Upon revivor the plaintiff's successor adopts all pre- vious proceedings and continues the action from the point where it was left by the death. ^*" Whether the revivor was properly made is necessarily decided by the court that grants it, and cannot be ques- tioned collaterally.^*^ Where all the heirs of the deceased defendants were already parties, it was a mere formality to suggest the deaths upon the record, and same could be done nunc pro tunc}^"^ § 147. Rules of Practice. — Several early cases have held that the general rules of practice did not impose jurisdictional requirements, and that failure to fulfill all the detail imposed by them, in allegations of ser- vice ^*^ or in a petition in infants' proceedings,^** was not a defect invalidating title. More recently the courts have said that the general rules have the force and effect of statutes, and must be strictly followed where infants are concerned.^*^ Under rule 60 the referee must take proof of the amount due on the mortgage;^*® but need not take proof of pedigree where the infant defendants are alleged to 139. Brevoort v. Brevoort, 115 N. Y. 656. 140. Thwing v. Thwing, 9 Abb. Pr. 323. . ' 141. Weyh v. Boylan, 62 How. Pr. 397, affd. 63 How. Pr. 72, on opinion below. 142. Waring v. Waring, 7 Abb. Pr. 472. 143. Althause v. Radde, 3 Bosw. 410. 144. 'Reilly v. King, 2 Robt. 587 ; and see dictum in Rosenf eld V. Miller, 131 A. D. 282. 145. Moscowitz v. Homberger, 19 Misc. 429, affd. on other grounds, 20 Misc. 558; Smith v. Warringer, 41 Misc. 94. 146. Smith v. Warringer, 41 Misc. 94. Parties. 119 be heirs of the former owner of the equity."'^ The form of the order is not jurisdictional.^** Former rule 54, permitting sale in New York City on three weeks' notice, applied only where no statute pre- scribed longer notice.^*" 5. Partition. § 148. Action — Whether after the adoption of the Code partition could still be instituted by petition as provided by the Kevised Statutes was at one time con- sidered a doubtful question of law.^ Partition may not be brought by a sole life tenant in order to defeat a trust and cut off infant remainder- § 149. Parties. — A. Plaintiff. — An action of parti- tion may not be brought by an infant except under au- thority of court. A sale of the infant's share in a suit brought without such authority does not pass marketable title.* Life tenants may partition among themselves, and in . a suit brought for that purpose remaindermen are proper parties. If pending the suit the person on whose life the particular estates depend dies, the purchaser will get a good title in fee.* But although a remainderman may also bring such suit, no sale can be had therein except as provided by statute.® 147. Franklin v. Di Clementi, 123 A. D. 664. 148. Flanagan v. Thomas, 166 A. D. 941. 149. Romaine v. McMillen, 5 How. Pr. 318. 1. Matter of Cavanagh, 37 Barb. 22. 2. Harris v. Larkins, 22 Hun, 488. 3. Struppman v. Muller, 52 How. Pr. 211; Clark v. Clark, 21 How. Pr. 479 (reference to this case in 6 Alb. L. J. 168, is errone- ous). See Code Civ. Proc, § 1534. 4. Jenkins v. Fahey, 73 N. Y. 355, rvsg. 11 Hun, 351. 5. Scheu V. Lehning, 31 Hun, 183. In 1883 the Code provided 120 Partition Sales. The statutory provision that no person except a I joint tenant or tenant in common shall be plaintiff is not jurisdictional. After judgment in a partition suit instituted by a dowress" or by a tenant by the curtesy,^ a sale thereunder will pass good title. And so of the provision requiring plaintiff to be in pos- session.* Under the common law the husband was seized in his own right of a life estate in his wife's land. An ac- tion brought by husband and wife jointly could be main- tained in the husband's right where his wife was an in- fant.' : An owner of part of the fee is not precluded from acting as plaintiff because he is also trustee for another part owner. ^^ A committee of a lunatic may as such bring an action for partition in behalf of the lunatic.^^ § 150. B. Defendamts. Representation. — A person whose interest is duly and fully represented by a party to the action need not himself be made a party indivi- dually. Such person may have a legal representative, as trustee of an express trust for a beneficiary ; ^^ or com- mittee for a lunatic.^^ Or he may have virtual fepre- that no sale at all could be made. Shortly after the decision of this case, $ 1533 was amended to permit a sale upon the written consent of the life tenant. 6. Cromwell v. Hull, 97 N. Y. 209; Code Civ. Proc, § 1538. 7. Keed v. Keed, 107 N. Y. 545, a%. 46 Hun, 212. 8. Blakely v. Calder, 15 N. Y. 617, affg. 13 How. Pr. 476. 9. Sears v. Hyer, 1 Paige, 483. 10. Cheesman v. Thome, 1 Edw. 629. 11. Koepke v. Bradley, 3 A. D. 391, affd. 151 N. Y. 621, on opin- ion below. 12. Clemens v. Clemens, 37 N. Y. 59, affg. 60 Barb. 366; Coster , v. Clarke, 3 Edw. 428. 13. Koepke v. Bradley, 3 A. D. 391, affd. 151 N. Y. 621, on opin- ion below. ' Paeties. 121 sentation, as where, not having been himself in esse at the time of the action, all persons through whom he claims were duly joined therein." It is well established in such case that the future contingent interest of the unborn person is cut off by the judgment without the necessity of joining him as an unknown party. § 151. Heirs. — That the heirs of the intestate owner are necessary parties goes without saying. But in the search for heirs it is not necessary to join all the relatives of the alleged heirs. A purchaser objecting to the omission of such relatives must show that they are •themselves related to decedent.^^ § 152. Remaindermen. — Remaindermen are neces- sary parties in partition. They are not represented by the trustee of the life estate.^'' To determine who comes within that description it is usually necessary to decide first whether the remainder vested upon the death of testator or only upon the death of the life tenant.^'' Where there is equitable conversion the fee vests as personalty in the executors, and remaindermen are not necessary parties.^* But where there is no equitable conversion, the fact that the trustee had a discretionary power of sale does not remove the necessity of joining the remaindermen.^' 14. Cheesman v. Thome, 1 Edw. 629; Mead v. Mitchell, 17 N. Y. 210, affg. 5 Abb. Pr. 92; Clemens v. Clemens, 37 N. T. 59; Brevoort V. Brevoort, 70 N. Y. 136; Campbell v. Stokes, 142 N. Y. 23, afifg. 66 Hun, 381; Adami v. Backer, 29 Misc. 93; Noble v. Cromwell, 26 Barb. 475, affid. 3 Abb. Dec. 382. 15. Sonn v. Kennedy, 51 Misc. 234 (dictum). 16. Moore v. Appleby, 108 N. Y. 237, affg. 36 Hun, 368; Kirk v. Kjrk, 12 Supp. 326; Guilbert v. Guilbert, 68 Misc. 405. 17. Matter of Baer, 147 N. Y. 348, affg. Nathan v. Hendricks, 87 Hun, 483. 18. Cornell v. Cornell, 14 S. R. 612, affd. 109 N. Y. 644, without opinion; Sonn v. Kennedy, 51 Misc. 234 (dictum). 19. Miller v. Wright, 109 N. Y. 194. 122 Partition Sales. § 153. Lienors. — In order to clear the title for a pur- j chaser all lienors must be joined, both those having liens on the entire premises and those having liens on' an undivided share.^" Sijich lienors include legatees vrhose legacies are charged on the land; and in the] same category are dowress ^ and tenant by the curtesy.^^ A judgment creditor whose judgment has been dis-l charged under the insolvent act is not such lienor ; ^* nor is a purchaser at sheriff's sale pendente lite.^ § 154. Executor and Administrator. — It is obligatory under the Code, § 1538, to join the executor or adminis- trator of a deceased heir.^^ § 155. Tenant. — A party in possession must be joined whether he holds under a lease or is a mere squatter. Purchaser is entitled to possession and cannot, be re- quired to litigate to obtain it.^^ § 156. Equities. — Parties having an equitable inter- est, as under a contract for the purchase of an undivided share, mu§t be joined.^^ § 157. Guardian ad Litem. — Order. — Under the Code of Procedure appointment of a guardian ad litem by a judge's order was not fatally defective. Upon ob- jection by the purchaser, it was held an amendable irregularity.^^ 20. Jackson v. Bradhurst, 25 Civ. Proc. 228. 21. Coster v. Clarke, 3 Edw. 428. 22. Bogert v. Bogert, 5 Supp. 893. 23. Sebring v. Mersereau, 9 Cow. 344, affg. 1 Hop. 501. 24. Spring v. Sandford, 7 Paige, 550. 25. Bernhardt v. Kurz, 38 Supp. 103. 26. Kopp V. Kopp, 48 Hun, 532. 27. Ford v. Belmont, 7 Robt. 97, affd. 7 Robt. 508; Noble v. Cromwell, 26 Barb. 475. 28. Disbrow v. Folger, 5 Abb. Pr. 53. Liens. 123 The order eliould fix the number of sureties and the amount of the bond.^^ § 158. Bond. — The bond of a guardian ad litem may be filed nunc pro tunc.^" The entire absence of such bond, not corrected, is, however, a fatal defect. ^^ The bond should run to the state; but if incorrect in form may be amended.^^ A separate bond for each infant is the best practice.^ § 159. Liens. — Where due notice has been given to , creditors, all liens and encumbrances by judgment or decree on any undivided share or interest in the prem- ises are barred by the sale.'* If there are no creditors there is no need to advertise.'^ In such case the parties should produce to the purchaser a twenty years' search ; '^ or in case of sale within three years after the owner's death, satisfactory evidence of sufficient per- sonalty to pay debts.*^ Publication in one newspaper is sufficient unless the premises lie in more than one county.^* Failure to des- 29.' Kennedy v. Arthur, 18 Civ. Proc. 390. 30. Waring v. Waring, 7 Abb. Pr. 472; Croghan v. Livingston, 17 N. Y. 218. 31. Struppman v. MuUer, 52 How. Pr. 211; Clark v. Clr.rk, 14 Abb. Pr. 299; Walter v. De Graaf, 19 Abb. N. C. 406. 32. Rockwell v. Decker, 5 Civ. Proc. 62, afiEd. 33 Hun, 343. This case and Thistle v. Thistle, 5 Civ. Proc. 43, were decided during a brief period (1880-1884) when the requirement of naming the state as payee was not in force. It does not seem ever to have been proper to draw such bond to the county treasurer, and there is probably an error in the statement of Rockwell v. Decker. 33. Crouter v. Crouter, 133 N. Y. 55 (dictum). 34. Dunham v. Minard, 4 Paige, 441. 35. Toole V. Koenler, 14 S. R. 934 ; Doremus v. Doremus, 66 Hun, 111 ; Alvord v. Beach, 5 Abb. Pr. 451. 36. Hall V. Partridge, 10 How. Pr. 188. 37. Hulse V. Hulse, 17 Civ. Proc. 92. 38. Connor v. Connor, 20 Civ. Proc. 308. 124 Foreclosure Sales. ignate the newspaper in the order is cured by confirma- tion of the referee's report.^^ A referee, under a judgment providing for payment of taxes and assessments out of the proceeds, must dis- charge all known liens.^" 6. Foreclosure of Mortgage and Tax Lien by Action. § 160. What Mortgage Includes. — A grantee took title by a description which did not include all the premises intended to be conveyed. After having mort- gaged by description covering the entire parcel in question, but without covenants, he obtained from his grantor a quitclaim covering the omitted gore. It was held that said gore was equitably included in the mort- gage and that foreclosure of same transferred both legal and equitable title to the purchaser.^ A mortgage which shows mortgagor 's intent to mort- gage the entire premises binds him by estoppel in spite of an error of description; and upon foreclosure by same erroneous description he and his grantees are cut off from all claim.^ The mortgage carries a right to foreclose which can- not be interfered with by mortgagor's administrator.^ § 161. Jurisdiction. — It was at one time doubted whether the county court had jurisdiction in foreclos- ure;^ but that it has such jurisdiction has been well established for many years. 39. Same. 40. Weseman v. Wingrove, 85 N. Y. 353, affg. 9 W. D. 434. 1. Smyth V. Eowe, 33 Hun, 422, affd. 98 N. Y. 665, on opinion below. 2. Bernstein v. Nealis, 144 N. Y. 347. 3. Breevoort v. M'Jimsey, 1 Edw. Ch. 551. 4. Benson v. Cromwell, 26 Barb. 218. The case of Hall v. Nel- son, 23 Barb. 88, referred to as creating the doubt must be con- sidered overruled by Arnold v. Rees, 18 N. Y. 57. Parties. 125 § 162. Parties. — A. Plaintiff. — Where the mortgage is held by M N as general guardian of A and B, infants, it is proper for M N to institute foreclosure as such general guardian as sole plaintiff.^ § 163. B. Defendants. Owner of Equity and Persons Claiming Under Him. — The owner of the equity is obviously the defendant of first importance. Where there has been a conveyance of which plaintiff is chargeable with notice, it is a fatal defect for him not to join the grantee in his foreclosure suit.® Where the entire equity is owned by a person in representative capacity, it is sufficient to make him defendant with- out joining his beneficiaries.'' And there may be an effective representation without technical decree against such person, as where the sole trustee has died; the beneficiaries are all made parties and the proceed- ings are had in the supreme court which would itself have acted as trustee on application.^ Upon the decease intestate of the owner of the equity, title vests in his heirs who thereupon become necessary parties in foreclosure.' The administrator does not represent the heirs and is not a necessary party .^^ The result is the same as to the executor where there is a will which does not dispose of the premises." Where the. owner of the equity creates remainders 5. Bayer v. Phillips, 17 Abb. N. C. 425. 6. Farmers' Loan & Trust Co. v. Dickson, 17 How. Pr. 477; "Welsh V. Schoen, 59 Hun, 356; Argall v. Raynor, 20 Hun, 267. 7. Lockman v. Reilly, 95 N. Y. 64, rvsg. 29 Hun, 434; Daly v. Burehell, 13 Abb. Pr. N. S. 264. 8. Grady v. Ward, 20 Barb. 543. 9. Dodd V. Neilson, 90 N. Y. 243, rvsg. 27 Hun, 102. 10. Same; Heidgerd v. Reis, 135 A. D. 414. 11. Noonan v. Brennemann, 54 Super. 337. 126 Foreclosure Sales. therein, the remaindermen become necessary parties upon foreclosure of the mortgage.^^ They are not rep- resented by the life tenants." But it seems that th^ persons in esse who have the first vested estate of in- heritance may represent others having a future or con- tingent estate and also those of the same class born afterwards." In the case of equitable conversion, neither the de- visees nor the residuary legatees are necessary parties, for they are represented by the executor.^^ The assignee in bankruptcy takes title from the bankrupt owner of the equity and is a necessary party in foreclosure.^® He represents subsequent judgment creditors and also heirs. But where the bankruptcy petition is not filed until after foreclosure has been be- gun, and no assignee has been appointed at the date of the decree, the bankruptcy proceedings may be dis- regarded.^'' Jn fact the rule was laid down broadly in Wagner v. Hodge, 34 Hun, 524, affd. 98 N. Y. 654, without opinion, that the assignee in bankruptcy is, like any subsequent purchaser or encumbrancer, cut off by the lis pendens, 12. Williamson v. Field's Executors, 2 Sand. Ch. 533; Argall v. Raynor, 20 Hun, 267; Graham v. Fountain, 2 Supp. 598; Hodges V. Walker, 76 A. D. 305; Cook v. Sackett, 110 4.. D. 322; Eagle Fire Ins. Co. v. Cammet, 2 Edw. 127. In Phillips v. Wilcox, 12 Misc. 382, the decision is based upon plaintiff's failure to join the remaindermen; but the real objection to title seems to have been that the mortgage covered a life estate only. 13. Leggett v. Mutual Life Ins. Co., 64 Barb. 23, rvsd. on other grounds, 53 N. Y. 394. 14. Nodine v Greenfield, 7 Paige, 544 (dictum). 15. Argall v. Raynor, 20 How. 267; Boehmcke v. McKeon, 119 A. D. 30. 16. Johnson v. Fitzhugh, 3 Barb. Ch. 360 {dictum) ; Price v. Phillips, 3 Robt. 448; Daly v. Burchell, 13 Abb. Pr. N. S. 264. 17. Lenihan v. Hamann, 55 N. Y. 652, affg. 14 Abb. Pr. N. S. 274. Parties. 127 § 164. Subsequent Lienors, — Lienors subsequent to the mortgage are necessary parties. Judgment cred- itors of the owner of the equity are such lienors and must be joined in foreclosure.^^ Also judgment cred- itors of the life tenant.^^ After an assignment for bene- fit of creditors judgments against the assignor do not create liens, and therefore such judgment creditors are not necessary parties.^" Nor are judgment creditors whose lien is suspended by bond.^^ It is not necessary for plaintiff to go beyond the record and join judg- ment creditors whose judgments were docketed after the judgment debtor had parted with title, even though certain of such creditors had secured decrees setting the deed aside for fraud.^^ Subsequent mortgagees are necessary parties.^^ In case of such mortgagee's death, he is represented not by his heir but by his executor or administrator.^* In case such mortgagee is a foreign corporation, it is rep- resented not by ancillary receivers but by receivers appointed in the state of its organization.^^ Legatees whose legacies are charged on the real es- tate are necessary parties.^^ But not those whose legacies are not so charged.^'' The wife of a purchase money mortgagor has a lien of inchoate dower which, though subordinate to the 18. Wood V. Oakley, 11 Paige, 400, affg. 4 Edw. 562; Verdin v. Slocum, 71 N. Y. 345, rvsg. 9 Hun, 150; Raid v. Johnson, 121 Supp. 750; Lyon v. Lyon, 67 N. Y. 250. 19. Reynolds v. Kaplan, 3 A. D. 420. 20. Totten v. Stuyvesant, 3 Edw. 500. 21. Wronkow v. Oakley, 133 N. Y. 505, rvsg. 64 Hun, 217. 22. Carroll v. McKarahay, 35 A. D. 582. 23. Leggett v. Mutual Life Ins. Co., 64 Barb. 23, rvsd. on other grounds, 53 N. Y. 394. 24. German Savings Bank v. Muller, 10 W. D. 67. 25. Ely v. Mathews, 58 Misc. 365. 26. Forster v. Civill, 20 Hun, 282. 27. Hebron Society v. Schoen, 60 How. Pr. 185. 128 Foreclosure Sales. mortgage, survives foreclosure unless she is made aj defendant. Still more do the wives of the mortgagor's grantees.^^ A mortgagor's husband even though he joined in the mortgage has no lien and need not be made a de-j fendant.^^ General creditors of a deceased owner of the equity, ' even though his personalty is insufficient to pay debts, j have no lien and are not necessary parties in f oreclos- ) ure ; nor is the owner 's administrator.^" § 165. Prior Lienors. — The court has power to order the sale of sufficient premises to pay prior as well as subsequent liens if proper for the protection of all parties.^^ The first mortgagee has been held a proper party upon foreclosure of the second mortgage under a com- plaint alleging payment of the first mortgage.^^ [ Prior lienors are not ordinarily barred by a fore- closure. Unless the complaint has stated their claims specifically, they may disregard general allegations and permit judgment to be entered by default without being affected.^* § 166. Mortgagor. — A" mortgagor who has parted with the equity is not a necessary party.^* Nor is a mortgagor's administrator.^^ 28. Mills V. Van Voorhies, 20 N. Y. 412. 29. Trustees of Jones Fund v. Roth, 18 W. D. 459. 30. Heidgerd v. Reis, 135 A. D. 414. 31. Andrews v. 'Mahoney, 112 N. Y. 567. In this case the first mortgage was overdue and the first mortgagee was the identical person who as second mortgagee brought the suit. 32. Argall v. Bachrach, 18 W. D. 267. 33. Tax Lien Co. v. Schultze, 213 N. Y. 9, rvsg. 161 A. D. 693. 34. Sehmalholz v. Polhaus, 49 How. Pr. 59; Graham v. Law- yers' Title Ins. Co., 20 A. D. 440. 35. Heidgerd v. Reis, 135 A. D. 414, Eefeeence. 129 § 167. Tenomt. — The person in possession is a neces- sary party.^" It is no excuse for omitting the tenants that they are monthly tenants. The fact that proceed- ings to oust them are less elaborate and costly than if they were yearly tenants does not help plaintiff. Pur- chaser is not bound to incur the expense of any inde- pendent proceedings whatever.^' But where a defend- ant is in possession purchaser may not refuse to com- plete, for he is not entitled to possession until he does complete.^^ § 168. State. — The state could not be joined as a party in foreclosure until by a recent statute express authority was granted for such practice.^' § 169. Reference. — The referee to compute is not re- quired by law to take an oath, as has been held at spe- cial term, the court adding that omission to take oath if required would be a mere irregularity cured by con- firmation of report.*" After the death of the owner of the equity, his non- resident infant heirs were made parties and on their default their relationship was proved before the referee by hearsay. This was held sufficient.*^ When a necessary party has disappeared and fore- closure is instituted against him and his unknown heirs, it is not necessary to prove that there are in fact such heirs who are unknown.*^ 36. Hirseh v. Livingston, 3 Hun, 9; Welsh v. Sehoen, 59 Hun, 356. 37. Downes v. "Wenninger, 207 N. Y. 286, rvsg. 150 A. D. 914. 38. Union Trust Co. v. Driggs, 62 A. D. 213. 39. Seitz V. Messerschnitt, 117 A. D. 401, affd. 188 N. Y. 587, ■without opinion. 40. McGowan v. Newman, 4 Abb. N. C. 80. 41. Douw V. Keay, 16 Misc. 192. 42. Moran v. Conoma, 59 Super. 101, affd. 128 N. Y. 591, without opinion; Wheeler v. Scully, 50 N. Y. 667. 130 Foreclosure Sales. The failure of the order of reference, where there are infants or defendants served by publication, to di- rect the referee to take and file proof of the facts is a formal defect, which may be corrected nimc pro tunc/^ even as against infants.^* § 170: Liens. — Where it does not appear that there are any liens, the omission to advertise for same is immaterial.^^ On the application of either plaintiff or subsequent lienors enough property may be sold to satisfy all claims.** On a sale subject to liens, the amount thereof should be announced.*^ Such provision overrides the general provision for discharging taxes and other liens out of the proceeds.** The provision for the payment of assessments out of proceeds is for the benefit of purchaser only; the mu- nicipality cannot take advantage of it.*' Such provi- sion covers only the taxes and assessments that are liens at the time of the sale. It is not extended either by an exaggerated announcement or by accrual of a new tax lien pending delivery of deed.^" 43. Brody, Adler & Koch Co. v. Hoehstadter, 160 A. D. 310; Flanagan v. Thomas, 166 A. D. 941. 44. Franklin v. Di Clementi, 123 A. D. 664; Ames v. Danzilo, 158 A. D. 232. In several of the foregoing cases the referee had actually taken proof; but the reasoning of the court is broad enough to cover cases in which such fact does not appear. 45. Dennerlein v. Denilerlein, 111 N. Y. 518, afifg. 46 Hun, 561, and 14 S. R. 932. 46. Livingston v. Mildrum, 19 N. Y. 440; De Forest v. Farley, 62 N. Y. 628, affg. 4 Hun, 640. 47. Nesbit v. Knowlton Hall Co., 45 Misc. 510 (dictum). 48. Andrews v. O'Mahoney, 112 N. Y. 567. 49. Morgan v. Fullerton, 9 A. D. 233. 50. Fletcher v. 416 West 33d Street Realty Co., 152 A. D. 943, affg. 77 Misc. 280. Foreclosure by Advertisement. 131 § 171. Sale. — A sale should not be made under two separate foreclosure judgments at once, as of the sec- ond and third mortgages; but such irregularity is cured by bidding.^^ § 172. Tax Foreclosure. — Under a recent amend- ment to the Greater New York Charter, §§ 1035-1039, tax liens in New York City are now foreclosed by the same method and with the same result as in the case of mortgage liens.^^ The system promises to be of great advantage in the simplification of titles. The purchaser is entitled to marketable title.^^ 7. Foreclosure by Advertisement. § 173. Mortgagor's Representative. — Under the Laws of 1844, chap. 346, if the mortgagor was dead and there were neither executors nor administrators representing him, the mortgagee was excused from serving notice of foreclosure I by advertisement. As the court re- marks, it is not the fault of the mortgagee that there is no one to serve.^ § 174. Sale in Parcels. — Premises covered by the mortgage must be sold in separate parcels. This pro- vision of the statute ^ is mandatory. Where the prem- ises consisting of three lots (as shown on a map) on 51. Nesbit v. Knowlton Hall Co., 45 Misc. 510 (dictum). 52. Tax Lien Co. v. Schultze, 213 N. Y. 9, rvsg. 161 A. D. 693. 53. Barber v. Woolf, 90 Misc. 106, rvsd. 167 A. D. 627, on other grounds. 1. Stanley v. Preekelton, 65 Hun, 138; Pitt v. Amend, 84 Hun, 492. The earlier case of Mackenzie v. Alster, 12 Abb. N. C. 110,, at special term, to the contrary must be considered overruled. The statute is now embodied in Code Civ. Proc, J 2388, under slightly- different wording. 2. Code Civ. Proc, § 2393. 132 Judicial Sales. one of whicli stood two houses, are sold in a single parcel, it is doubtful whether the mortgagor's infant heir is foreclosed.^ 8. Foreclosure of Mechanic's Lien. % 175. The description in the notice of lien must identify the premises. An error in stating the width of a parcel in Manhattan Borough, New York City, not described by street number, as twenty-five feet instead of fifty feet, raises enough doubt about the validity of a title tendered at the sale in foreclosure of such lien to make title unmarketable. On the same foreclosure, it was objected that two mechanics' liens had been filed against the premises between the filings of the original and amended lis pendens, and that these intermediate lienors had not been joined. It was held that this objection also raised a reasonable doubt.* "Where defendant lienors answer and file lis pendens describing the premises correctly, an error in descrip- tion in plaintiff's lis pendens and complaint becomes immaterial. The court may proceed to a sale on the determination of any lien on its own pleading, proof and procedure.^ 9. Admeasurement of Dower. § 176. Where infants are parties, the allegations of the complaint must be proved.® The widow's consent may be filed even after inter- locutory judgment.'' 3. Hemmer v. Hustace, 51 Hun, 457. 4. SprickerhoflE v. Gordon, 3,20 A. D. 748, affd. 194 N. Y. 577, without opinion. 5. Hill V. Flatbush Consumers' lee Co., 143 A. D. 559. 6. Dwyer v. Dwyer, 13 Abb. Pr. N. S. 269. 7. Freeman v. Ahearn, 64 A. D. 509. . Jurisdiction. 133 10. Judgment Creditor's Suit. § 177. Tlie effect of a decree in a judgment cred- itor's action is to set the deed aside onlj for the benefit of creditors. After the rights of all such creditors have become outlawed, title may safely be derived through the conveyance adjudged void.^ 11. Administrator's and Executor's Proceedings. § 178. Generally. — An order directing the adminis- trator to sell decedent's real estate topay debts does not vacate nor stay a pending foreclosure suit.^ It is the administrator's duty to proceed under an order of sale until all debts are paid. He should sell premises set apart to the widow for dower, if neces- sary.^ As debts are superior to legacies, the charge of lega- cies cannot impair the right to sell for debts.^ Proceedings to sell for debts must be strictly pur- sued and any substantial departure from the statutory requirements renders them void.* An absolutely lit- eral compliance with the statute is not, however, always necessary.^ § 179. Jurisdiction. — The jurisdiction of a New York court of probate is limited, as seems to be the case in Connecticut. The failure of the Connecticut adminis- 8. Knapp v. Crane, 14 A. D. 120. 1. Breevort v. M'Jimsey, 1 Edw. Ch. 551. 2. In re Lawrence, 1 Eedf. 319. The surrogate's dictum that such sale would vest title in the purchaser free from dower is overruled by the court of appeals in Lawrence v. Brown, 5 N. Y. 394, distinguishing obiter the case where dower had not been judicially admeasured. 3. Matter of Dolan, 88 N. Y. 309. 4. In re John's Estate, 18 Supp. 172; Matter of Mahoney, 34 Hun, 501; Taylor v. Chamberlain, 6 A. D. 38. 5. Matter of Georgi, 35 Misc. 685 (dictum). 134 Administrator's Sale. trator to file a bond raises a doubt as to the validity of proceedings in that state for the sale of real estate there situated; and the absence of proof of debts raises such serious doubt of the jurisdiction of the probate court to order a sale that without a controlling deci- sion by the courts of that state a vendee will not be required to accept a title derived thereunder.^ It was formerly held that the surrogate having once acquired jurisdiction of such proceedings must enter- tain purchaser's application to be relieved on account of defects in the title. He is given by statute such incidental powers as are necessary to carry his decree ■into effect.' But since the revision of 1904, depriving the surrogate of the power of confirming the sale, the incidental power of passing on the title has been held to have been taken away also.^ The court of appeals, in Matter of Dolan, 88 N. Y. 309, citing Laws of 1850, chap. 82, said that an error by the surrogate in the amount of land ordered sold is a mere irregularity, of which the parties alone can complain. It would seem, however, that where the sale is made by separate parcels, as in that case, the pur- pose would be fulfilled when enough was sold to pay the debts, and the power to order more would be ex- hausted. Any further sale might logically be regarded as beyond the jurisdiction of the court. Whether filing an inventory was a jurisdictional prerequisite to the proceedings was not decided by the chancellor in Butler v. Emmett, 8 Paige, 12. The peti- tion in that case showed that there was no personal property, which as the court decided answered all the purposes of an inventory. 6. Taylor v. Chamberlain, 6 A. D. 38. 7. Code Civ. Proc, § 2481, par. 11; Matter of Lynch, 33 Hun, 309. 8. Laws of 1904, chap. 750; Matter of Bridgeport Brass Co., 77 Misc. 69, affd. 155 A. D. 910. Petition. 135 A description of tlie premises in the petition is juris- dictional.' § 180. Foreign Will.— Where the petition for letters of administration with the will annexed showed a will probated in another state and assets in New York, but did not show creditors here, the appointment though purporting to be of an ancillary administrator will be regarded aS principal, and will sustain proceedings to sell decedent's real estate." § 181. Petition.— Who May Bring.— It was held un- der the Revised Statutes that a judgment creditor might not petition for sale of the real estate ; ^^ but that decision has doubtless been rendered obsolete' by the express provision to the contrary in Code Civ. Proc, § 2750. The owner of an assigned claim should bring the petition in his own name, instead of presenting it as that of his assignor.^^ § 182. Time. — Such application must be made within three years from the original grant of letters of admin- istration. Time is not extended by the death of the administrator and appointment of an administrator de bonis non; ^^ nor by the revocation of A's letters in 9. Kelley's Estate, 1 Abb. N. C. 102. The court took the view- that the defect was not overcome by Laws of 1850, chap. 82, which was intended to protect against collateral attack only. That statute was more broadly applied in Matter of Dolan, 83 N. Y. 309, where title was objected to by the purchaser in the proceed- ings, as in the Kelley case, and numerous defects in procedure were held immaterial because of the statute. 10. Estate of Ladd, 5 Civ. Proc. 50; Hendrickson v. Ladd, 2 Dem. 402 — stating obiter that a sale by an ancillary administrator would be plainly void. 11. Butler V. Emmett, 8 Paige, 12. 12. Same. 13. Same. 136 'Administrator's Sale. favor of letters granted to B, folowed by litigation and the eventual confirmation of A's letters and revoca- tion of B's." § 183. Contents. — The petition must recite the heirs^^ and devisees.^^ An allegation that the " heirs are " the persons named will be construed as meaning" that said persons are all of such heirs." A petition showing that mortgage or lease would be unavailing need not ask authority to mortgage or lease.^* The petition should describe the premises ^' and show whether the land is occupied ; ^^ but it need not state separately the value of several parcels lying together.^^ § 184. Citation. — Parties. — Heirs and devisees are necessary parties,^^ including contingent remainder- men.23 Matter of Dolan, 88 N. Y. 309, decided under the Eevised Statutes, held that lienors in general, and speci- fically legatees whose legacies were charged, need not be cited; and that although the omission of creditors was an irregularity, it was not necessarily fatal. Under the 14. Monroe v. Musica, 166 A. D. 929. 15. Matter of Slater, Gibbons, 8; In re John's Estate, 18 Supp. 172. 16. Estate of John, 21 Civ. Proe. 326. 17. Greenblatt v. Hermann, 144 N. Y. 13, eoncediog, however, that the point raised was not frivolous. 18. Matter of Dolan, 88 N. Y. 309. 19. Kelley's Estate, 1 Abb. N. C. 102. 20. Matter of Slater, Gibbons, 8; Kelley's Estate, 1 Abb. N. C. 102. 21. Matter of Georgi, 35 Misc. 685 (dictum). 22. John's Estate, 18 Supp. 172; 21 Civ. Proe. 326; Matter of Slater, Gibbons, 8; Butler v. Emmett, 8 Paige, 12; Matter of Townsend, 203 N. Y. 522. 23. Wilson v. White, 109 N. Y. 59. Citation. 137 Code the requirement is broader; widow or widower of decedent and all persons claiming under the heirs and devisees must be cited. This includes the judgment creditors of the heirs.^* It also seems from the weight of authority that the citation of decedent's general creditors is now a jurisdictional necessity.^^ Matter of Dolan, 88 N. Y. 309, also holds that execu- tors named in the will, but not qualifying, need not be joined; that where the same individuals are named as executors and trustees, it is not necessary for them proceeding in one capacity to serve themselves in the other; and that unborn devisees are cut off by the pro- ceedings. As these points are not dependent upon any statutory provision that has been changed, they may be assumed to represent the law to-day. § 185. Contents. — The citation is binding only on the persons named therein. Though personally served on tenants not named and on representatives of de- ceased parties, it does not give jurisdiction over them. The omission of a Christian name is not, however, a jurisdictional defect; nor is the omission of the indi- vidual names of partners cited by their firm name and personally served. A party cited by a wrong name cures the defect by his appearance in the proceeding. ^^ The place of hearing is sufficiently designated by the words "in this court," from which reference may be made to the caption." A return date seventy-one days from the date of the order was held a mere irregularity under a statute pro- viding that the order should be returnable not more 24. Matter of Townsend, 203 N. Y. 522. 25. Matter of Mahoney, 34 Hun, 501 ; Matter of Slater, Gibbons, 8; Matter of Georgi, 44 A. D. 180, affd. 162 N. Y. 660, on opinion below. 26. Matter of Georgi, 35 Misc. 685 and dicta. 27. Rigney v. Coles, 6 Bosw. 479. 138 Administeator's Sale. than ten weeks from its issue. The extra day could do no harm.^' The return date of the order to show cause may not be changed by petitioner.^' § 186. Publication. — Since all creditors must be cited and some may not be known, they must be cited as a class and the citation must be published. In the absence of publication, notice cannot be brought home to the unknown creditors.^" Publication once a week for four weeks in a daily paper is sufficient under a statute requiring publication " for four weeks." ^^ It was suggested that a publication four days short of the period prescribed by the Revised Statutes could be cured by the heirs' recognition of the proceedings.^^ Whether under the Revised Statutes publication was necessary in the county where letters of administration were issued, but where no heirs resided and where none of the real state was situated, is considered but not de- cided in O'Connor v. Huggins, 113 N. Y. 511. § 187. Special Guardian. — The infant must be served with citation before application for special guardian. Appointment of such guardian followed by his admis- sion of service of citation is not in itself enough to give jurisdiction.^^ Failure to give notice to infants under fourteen of application for appointment of special guardian was held a mere irregularity not affecting title.'* 28. O'Connor v. Huggins, 113 N. Y. 511. 29. Pinckney v. Smith, 26 Hun, 524. 30. Matter of Slater, Gibbons, 8; Matter of Georgi, 44 A. D. 180, affd. 162 N. Y. 660, on opinion below. 31. Rigney v. Coles, 6 Bosw. 479. 32. Butler v. Emmett, 8 Paige, 12. 33. Pinckney v. Smith, 26 Hun, 524. 34. Estate of Fenn, 8 Civ. Proc. 206; Price v. Eenn, 3 Dem. 341. Infant's Proceedings. 139 § 188. Sale. — The administrator may sell only the premises described in the order of sale.*^ Such order must describe the land correctly. ^^ The notice of sale must be given to all parties in time to permit them to bid.^^ It is not necessary to sell the several parcels in the order in which they are enumerated in the decree.^' § 189. Bond. — The purchaser objected that the free- holder's bond required by the Eevised Statutes was not double the value of the premises. This objection was overruled on the ground that such value could not be ascertained with certainty in advance. ^^ § 190. Costs. — A counsel fee has been allowed to petitioner ; ^° but denied to purchaser." 12. Infant's Proceedings. § 191. Jurisdiction. — Infant's proceedings may be brought to dispose of a remainder, whether vested ^ or contingent ; ^ for a remainder is real estate of which the infant may be seized, though not in possession. There is no authority (under the Revised Statutes) for disposing of the interests of persons not in exis- tence ; ^ or of an estate of which the infant is not seized.* 35. Butler v. Emmett, 8 Paige, 12. 36. In re Campbell, Tucker, 240. 37. Matter of Mahoney, 34 Hun, 501. 38. Matter of Dolan, 88 N. Y. 309. 39. Matter of Dolan, 88 N. Y. 309. See opinion of surrogate. 40. Higbie v. Westlake, 14 N. Y. 281. 41. In re Campbell, Tucker, 240. 1. Jenkins v. Fahey, 73 N. Y. 355; Matter of Haight, 14 Hun, 176. 2. Matter of Asch, 75 A. D. 486. 3. Matter of Conover, 27 How. Pr. 224. 4. Baker v. Lorillard, 4 N. Y. 257, opinion of Harris, J. 140 Judicial Sale. Where it appears on the face of the proceedings that they were instituted not to benefit the infants but merely to clear title for some adult, the title of such adult will not be marketable. Such title is not validated even by a fair sale on which the infants received full value.^ § 192. Grounds. — The grounds upon which these proceedings may be maintained have been enlarged from time to time. The insufficiency of the infant's personal property and of his income from real estate for his sup- port is adequate ground ; " as is the avoidance of parti- tion ; ' or unproductiveness of the real estate.' Peculiar reasons or circumstances also justify such proceedings — as where the infants' mother asserted that a deed made by herself under which the infants' title is derived was fraudulent, and an action is pending to set same aside.* § 193. Who May Bring.— The infant's mother act- ing as next friend may (under the Eevised Statutes) properly institute proceedings although she has no legal appointment as next friend or as general guardian.^" An infant over fourteen years of age must join in the petition; the statutory requirement to that effect is jurisdictional.^^ 5. Moscowitz V. Homberger, 19 Mise. 429, affd. on other grounds, 20 Misc. 558. 6. Ryder v. Wood, 8 Supp. 421; Hammer Realty Co. v. Moran, 73 Misc. 135. 7. Blanchard v. Blanehard, 33 Misc. 284; Matter of Hopkins, 33 A. D. 615. 8. Hammer Realty Co. v. Moran, 73 Misc. 135; Johnston v. Garvey, 139 A. D. 659. 9. Johnston v. Garvey, 139 A. D. 659, affd. 201 N. Y. 548, on opinion below. See also Matter of Asch, 75 A, D. 486. 10. Matter of Whitlock, 32 Barb. 48 (dietum). 11. Rosenfeld v. Miller, 131 A. D. 282, adding obiter that such a provision in the rules of chancery was not jurisdictional. Infantas Proceedings. 141 § 194. Petition. — Contents. — A petition inferentially stating the jurisdictional facts is sufficient to support tlie sale when the purchaser's title is afterwards objected to. The court looks to the substance rather than the form, and finding the material facts clearly shown by the referee's report, is satisfied with a substantial com- pliance with the statute in the petition.^^ Where the sale is applied for in order to avoid parti- tion, the petition need not show the infant's income and debts ;^^ but otherwise it must," unless the infant has no debts — in which case the omission to state same iS excused.^^ § 195. Execution. — A petition executed by the guard- ian in behalf of the infant and verified by the guardian is sufficient though reciting that it is the petition of the infant instead of the guardian.^" The next friend may sign the petition individually." § 196. Special Guardian. — Appointment. — The uncle of the infants, though himself a creditor, may be appointed special guardian.^^ Nor is their mother dis- qualified by reason of her dower in the premises and a claim against the estate of the deceased father through whom they inherit; she is still interested in getting the highest possible price." § 197. Bond. — A bond being prescribed by the Oode,^" cannot be dispensed with. If actually executed at the 12. Ryder v. Wood, 8 Supp. 421. 13. Blanchard v. Blanchard, 33 Misc. 284 (dictum). 14. Matter of Hopkins, 33 A. D. 615. 15. Hammer Realty Co. v. Moran, 73 Misc. 135. 16. Matter of Hopkins, 33 A. D. 615 (dictum). 17. O'Reilly v. King, 2 Robt. 587. 18. 'Reilly v. King, 2 Robt. 587. 19. Hammer Realty Co. v. Moran, 73 Misc. 135. 20. Code Civ. Proc, § 2352. 142 Judicial Sale. time of the referee's appointment, it may be filed later f- and if filed in the right place, it is not invalidated by a direction in the order to file in the county clerk's of- fice.22 § 198. Contract. — In 1871 it was not necessary for the guardian to enter into a written contract; ^^ nor is it to-day.^* That various adults joined with the special guardian as parties to his contract and deed is no objection.^^ Nor that a sale of other interests in the same premises is made to the same vendee simultaneously under an order in trustee's proceedings.^' § 199. Referee. — The record of proceedings showed no order of reference, although same was recited in the referee's report and order confirming same. The ex- istence of an order of reference was litigated as an issue in the action brought by the subsequent purchaser who rejected title, and on testimony of the infants' attorney it was found that no such order was ever entered. The title was thereupon held unmarketable.^' § 200. Exchange. — There is no authority for an ex- change of infants' real estate, either at common law or by statute. Such exchange is not validated by order of 21. Kelly v. Pitcher, 4 Supp. 3. 22. Ryder v. Wood, 8 Supp. 421. 23. Hardie v. Andrews, 13 Civ. Proc. 413, suggesting olUer that the later statutes might be construed differently. 24. Blanchard v. Blanchard, 33 Misc. 284, refusing to follow the dictum in Hardie v. Andrews, above. 25. O'Reilly v. King, 2 Robt. 587.'. 26. Matter of Aseh, 75 A. D. 486. The point was conceded. 27. Hegeman v. Stearns Realty Co., 117 A. D. 754, affd. 192 N. Y. 557, without opinion. 28. Bellinger v. Roatstone, 6 W. D. 69. Teusteb's Peoceedings. 143- court; ^^ nor assisted by the fact that the title is an un- divided share held in trust. ^^ § 201. Proceeds. — The purchaser is not responsible for the application of the proceeds.^" 13. Trustee's Proceedings. § 202. Jurisdiction. — The constitutionality of Laws of 1890, chap. 276, providing for the sale of real estate held in trust, was sustained in Matter of Field, 131 N. Y. 184. The procedure there prescribed, giving notice to all parties, including infants, and depositing the pro- ceeds in court for the benefit of persons not in esse, pro- tects all parties interested. That such trust estate is future and contingent, and may never vest in possession, is no obstacle to its sale under Laws of 1896, chap. 547, § SS.^ A court of equity has no general jurisdiction to direct the sale of a trust estate. To sustain such sale some statutory authority must be shown. Where the remain- der was devised to the children of R living at the death of the life tenant and to the issue of those deceased, and E and F, children of R, both of whom have issue, mort- gaged their interest and have been foreclosed with a deficiency of $38,000, the trustee may not bring proceed- ings for the sale of the estate. E and F may die before the life tenant, and the estate is best protected by saving the rights of their children, and allowing the indi- vidual interests of E and F to be foreclosed.^ 29. Von Glahn v. Heins, 128 A. D. 167. 30. Hardie v. Andrews, 13 Civ. Proc. 413; Hammer Realty Co. V. Moran, 73 Misc. 135. 1. Matter of Asch, 75 A. D. 486. 2. Matter of Mills, 28 A. D. 258. 144 Judicial Sale. § 203. Parties. — All persons ultimately interested in the estate by reason of the trust provisions are " bene- ficiaries" within the statutes and must be made par- ties to the proceeding. Contingent remaindermen are within this rule.^ Unborn persons may be bound by representation.* § 204. Grounds. — Unproductiveness alone is now sufficient ground for selling without proof of absolute necessity for sale. It may be determined by the ratio of income to value; namely, that where the value in- creases while the income remains constant, the property has become unproductive.^ When an undivided share is held in trust, its sale is especially authorized by Laws of 1896, chap. 547, § 85.* Peculiar circumstances may justify such sale. The following were held sufficient: A devise to S for life, remainder in trust for testator's infant children, each child taking a vested remainder in fee on reaching his majority, but with no provision for all dying before S. By bringing infants' proceedings and trustees' proceed- ings jointly and making all the children parties, the beneficiaries are all represented and the heirs are rep- resented as a class, and good title can be made to the entire estate.'' 14. Lunati&s Prooeedings. § 205. In proceedings to sell unproductive real estate of a lunatic for the support of himself and family, it is a substantial requirement of the statute * to take proof be- 3. Duffy V. Durant Land Improvement Co., 78 Hun, 314. 4. Matter of Asch, 75 A. D. 486. 5. Webster Eealty Co. v. Delano, 135 A. D. 488. 6. Matter of Aseh, 75 A. D. 486. 7. Same. 8. 2 R. S. 54, § 12. Assignment for Benefit of Ceeditoes. 145 fore a referee. A purchaser in proceedings in which no proof was taken is entitled to relief.' 15. Supplementary Proceedings. § 206. Where the judgment debtor, whether volun- tarily or pursuant to order of court, conveys to the re- ceiver, the latter takes a title which is not dependent on or limited by the statute.^" 16. Assignment for Benefit of Creditors. § 207. Validity. — An assignment for the benefit of creditors, though voidable on its face because it author- izes the assignee to sell on credit, is after thirty-three years presumed to have been accepted by all the credi- tors.^ P, owning the premises by devise from D, entered into an agreement with his own and D's creditors whereby they released their claims and he conveyed the premises to A and B upon trust to sell same with- in eighteen months f<5r the best interest of all parties, pay the creditors and return the balance to P. On the expiration of eighteen months, without a sale, P con- tracted to sell to the defendant, who declined to com- plete. It was held that P had executed a valid assign- ment for the benefit of creditors, that the limitation of time was directory only and that P could not convey.^ § 208. Title. — An assignment to three trustees vests title in them upon their acceptance. The subsequent renunciation of one and his failure to file a bond do not 9. Matter of Valentine, 72 N. Y. 184, rvsg. 10 Hun, 83. ' 10. Graham v. Lawyers' Title Ins. Co., 20 A. D. 440. 1. Morrison v. Brand, 5 Daly, 40. 2. Parsons v. Rhodes, 22 Hun, 80. 146 Judicial Sale. divest his title; and a conveyance by the other two as- signees does not pass good title.^ The assignee takes only what the assignor had.* Sale of the premises under a prior lien divests the assignee's title.5 A deed by an assignee who also owned an individual interest in the premises was construed to convey all title in both" capacities.^ A voluntary quitclaim by an assignee for benefit of creditors is beyond the scope of his trust and conveys no title.' § 209. Termination of Trust. — Title is divested from the assignee pursuant to a decree of discharge only when the assignee has fulfilled all the requirements of the de- cree — such as paying the balance of funds in his hands.* When all the creditors and their assigns consent the assignee may reconvey to the original owner.^ On the death of the assignee title vests in the court, nor is it divested by the payment of the creditors, or the subsequent appointment by anoyiier court of a substi- tuted trustee and his conveyance.^" § 210. Revesting of Title.— Where the trust had been partly administered but never formally closed, and the date of the last conveyance was not shown, it was held in McCahill v. Hamilton, 20 Hun, 388, that the 3. Brennan v. Willson, 71 N. Y. 502, affg. 7 Daly, 59. 4. Shriver v. Shriver, 86 N. Y. 575. 5. Siegel v. Anger, 13 Abb. N. C. 362. 6. New York Steam Co. v. Stern, 46 Hun, 206. 7. Shriver v. Shriver, 86 N. Y. 575. 8. Julien v. Lalor, 47 Hun, 164. 9. Parker v. Baker, 28 W. D. 97. 10. Smith V. Jacobs, 34 Hun, 628, holding that title was still in the court of common pleas, 23 years after the assignment. The substituted trustee was appointed by the supreme court. Bankruptcy. 147 Laws of 1875, chap. 545, providing for revesting of title after twenty-five years did not apply. The reasoning of this harsh decision was disapproved by the court of appeals in Kip v. Hirsh, 103 N. Y. 565, rvsg. 53 Super. 1, which held that after forty-five years an assignee for the benefit of creditors who had not been joined in a fore- closure suit had lost his right to redeem; that the title had revested in the assignor who had been made a party thereto ; and that it was marketable in the hands of the purchaser at such foreclosure.^^ 17. Bankruptcy. § 211. Proceedings. — Bankruptcy proceedings may supersede a judgment creditors' action and avoid an as- signment ordered therein.^ The following circumstances were held to thtow doubt on the validity of a title derived under bankrupt-cy sale : The price of only |2 ; lapse of twenty-two years between sale and conveyance; proof of a debt against bankrupt after his discharge.^ When the deed to vendor was made under such cir- cumstances that it might be set aside in bankruptcy pro- ceedings, she cannot be required by the purchaser to furnish an aflfidavit that her grantor was solvent.^ § 212. Judgments. — Judgments against the bank- rupt are avoided by his discharge. Trifling errors in the names and addresses of the judgment creditors as given in the schedule are immaterial, where said credi- 11. See also N. Y. Steam Co. v. Stern, 46 Hun, 206. 1. Gignoux V. Stafford, 42 Hun, 426, affd. 118 N. Y. 666, with- out bpinion. It should be observed that title cannot possibly be sustained on the ground of adverse possession, as suggested by Pratt, J., for the premises were not fenced until 1868. 2. Pahner v. Morrison, 104 N. Y. 132. 3. Wormser v. Garvey, 4 Hun, 476. 148 Judicial Sale. tors all appeared in the proceeding.^ The lien of the judgment is avoided by an adjudication in bankruptcy within four months ; and it is not necessary, in order to clear the bankrupt's title, to file in the register's of&ce a copy of the decree.^ § 213. Assignee. — The assignee in bankruptcy takes title to all the bankrupt's real estate. The omission of a parcel from the schedule does not prevent title from passing to the assignee." An assignee appointed before foreclosure must be made a party thereto in order to divest his title.' But an assignee appointed afterwards is regarded as a sub- sequent purchaser and need not be joined.* § 214. Sale. — ^An order of sale, in proceedings under the Act of 1841, did not appoint the time of sale. This was held immaterial where the sale was held in com- pliance with the general rules ; ^ also where the sale was private.^" A notice of sale erroneously describing property as on the wrong street is cured by a correct description by map and lot number in the same advertisement.^^ Whether a sale without any order was valid under the 4. Grosso V. Marx, 45 Misc. 500. 5. Kennedy v. Holl, 52 Misc. 379. 6. Ledoux v. Samuels, 116 A. D. 726. 7. Price v. Phillips, 3 Robt. 448; Johnson v. Fitzhugh, 3 Barb. Ch. 360 (dictum). 8. Wagner v. Hodge, 34 Hun, 524, affd. 98 N. Y. 654, without opinion; Lenihan v. Hamann, 55 N. Y. 652. In the latter case the foreclosure had proceeded to judgment before appointment of as- signee. 9. Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C. 219. 10. Gignoux V. Stafford, 42 Hun, 426, afifd. Matthiessen v. Staf- ford, 118 N. Y. 666, without opinion. 11. Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C. 219. • Tenement House Action., 149 Act of 1841 is so doubtful that it will not be determined, in the absence of the bankrupt's heirs.^^ « § 215. Adverse Claims. — It is said obiter in Price v.. Phillips, 3 Eobt. 448, that an assignee appointed under the Act of 1841 would be barred in two years as against a party in possession claiming adversely. 18. Liquidation of Bank. § 216. The Banking Law, § 19, provides for the liqui- dation of state banks by the superintendent of banks in summary fashion. The superintendent upon taking pos- session of the property, business and assets of the delin- quent bank holds a position analogous to a receiver's; he acquires an equitable title to the real estate, to which no lien can thereafter attach. Being authorized by the statute to sell, he can convey title free from the encum- brance of judgments entered after his possession.^^ 19. Action to Enforce Tenement House Law. § 217. Where a lis pendens has been filed against the premises by the tenement house department, to enforce the provisions of Tenement House Act, Laws of 1901, chap. 334, and before the closing date same has been cancelled and the notices of violation withdrawn, it con- stitutes no objection to title; nor can vendee complain that no physical change has been made in building.^* A lis pendens filed in an action begun by the city against a former owner after record of his conveyance 12. Palmer v. Morrison, 104 N. Y. 132. 13. Lafayette Trust Co. v. Beggs, 213 N. Y. 280. 14. Kennedy v. Holl, 52 Misc. 379. It may be questioned whether vendor should be allowed to profit by actual fraud in procuring an improper cancellation, as suggested by the court. The reasoning on that point is not convincing. 150 Statutory Sale. does not affect title ; nor does such lis pendens filed with- out any complaint.^^ 20. Execution SaU. § 218. What is Sold. — Premises, the title to which is disputed, will be sold under execution at the pur- chaser's risk.^^ Upon conveyance by duly executed sheriff's deed, the purchaser takes the title which the judgment debtor had at the time of sale, unaffected by intervening liens or conveyances." Short leases for years cannot be sold under execu- tion.^' § 219. Proceedings. — Under the Revised Statutes the sheriff had power to sell under a judgment which was not a lien. It was therefore no objection to title that the judgment was not docketed in the county where the premises were situated. His certificate created for the purchaser a lien subject to redemption.^' In Taylor v. Bell, 121 A. D. 437, the perfectly gratui- tous suggestion is made that an error of date in the sheriff's notice of sale " might envelope the title of a purchaser at such sale in uncertainty and doubt." Apart from this careless dictum, no reason whatever is per- ceived why such a result should follow. § 220. Deed. — The statutory requirement that as- signments of sheriffs' certificates should be filed was 15. Woodenbuxy v. Spier, 122 A. D. 396. 16. James v. Hubbard, 1 Paige, 228. 17. Siegel v. Anger, 13 Abb. N. C. 362. 18. Putnam v. Westcott, 19 Johns. 73. It is now provided by Code Civ. Proc, J 1430, that certain leases of five years and up- wards may be sold as real property. 19. Siegel v. Anger, 13 Abb. N. C. 362. This decision is not ap- J)licable to sales under the Code, which proceed on the theory of foreclosing a lien. See Code Civ. Proc, J 1365. Tax Sales. 151 enacted for the benefit of the sheriffs; the failure to file such assignment does not affect title conveyed by- sheriff's deed to such assignee.^" No conveyance may be made after the lien of the judg- ment and sheriff's certificate has expired.^^ § 221. Proof. — Evidence of the due issuance of the writ of fieri facias or execution under which the sheriff sold is important in order to render the purchaser's title marketable. The failure to find the writ itself after forty years was in Phillips v. Schiffer, 64 Barb. 548, held to be overcome by the sheriff's testimony and en- tries in his register. Mere recitals in the sheriff's certi- ficate and deed are insufficient, except as provided by Code Civ. Proc, § 1471.^2 In Goldman v. Banta, 58 Hun, 609, vendor showed that the judgment debtor had identified to the notary the purchaser of another plot sold under the same judgment, for the purpose of acknowledging a deed of those prem- ises ; and that he had made ho claim for over forty years. It was held that the proof showed the judgment debtor's knowledge that his real estate was being sold under execution, and raised the presumption of due process. Recitals in the sheriff's deed of assignment of the cer- tificate are sufficient evidence of the contents thereof when the sheriff's testimony shows the destruction of the assignments.^' 21. Tax Sales. § 222. What Passes. — Different systems of enforcing the payment of taxes and assessments through the sale of the debtor premises by the authority which levied 20. Phillips V. Schiffer, 64 Barb. 548. 21. Davidson v. Crooks, 45 A. D. 616. 22. Goldman v. Kennedy, 49 Hun, 157. 23. PhilUps V. Schiffer, 64 Barb. 548. 152 Statutory Sale. the tax or assessment have been in vogue from time to time, and in different places at the same time. The principle of the system most widely adopted, and still very common, has been to transfer to such person as would pay the delinquent tax the possession and 'use of the premises for a term of years determined by bidding at public auction. The exact effect of this transaction, and still more the essential steps in its consummation, can be ascertained only by careful study of the statutes governing the particular tax or assessment in the par- ticular locality. It is usually designated a " tax lease," and supposed like other leases to convey- a personal in- terest ; but such sales in the village of Williamsburgh in 1847 and 1851 were held to " give legal title to the pur- chaser for the time of the purchase." ^ If purchased by the owner of the fee the tax lease merges and is no ob- jection to title.^ A tax sale does not cut off an easement running with the land, such as a right of way and of entry ; ^ nor a mortgage.* Where both parties recognized the tax title as doubt- ful, vendee may not recover his consideration when such title subsequently proves Void.^ The court of appeals has held that on the sale of a tax lease the vendor does not warrant title; that he agrees only to sell his particular instrument and such title as the assignment thereof will carry ; that the pur- chaser has no right to assume that it is valid ; that tax leases are subject to be defeated by redemption and num- erous other causes, and are commonly taken by pur- chasers at their own risk; that therefore under a con- 1. Wood V. Squires, 3 T. & C. 468, rvsd. 60 N. Y. 191, on a question of practice. 2. Buel V. Southwick, 70 N. Y. 581. 3. Turner v. Walker, 40 Misc. 379. 4. Langdon v. Sehifif, 189 N. Y. 548. 5. Granger v. Olcott, 1 Lans. 169. Tax Sales. 153 tract to buy a 300-year lease of premises, it is no defense that before the closing date said premises had been sold again for 1,000 years and were still subject to |120 taxes.^ To avoid the implied warranty of title, as un- der this ruling may be done, the vendor must be ex- tremely careful in the form of his contract. If he uses the ordinary printed form for assignments of lease, containing the words " with all and singular the prem- ises therein mentioned and described," (even though the habendum is " unto the said H N G, his assigns from the first day of May, for and during all the rest, residue and remainder yet to come of and in the term of years mentioned in the said indenture of lease, subject, never- theless, to the rents, covenants, conditions and provisions therein also mentioned " ) he is held to have contracted to convey good title for the term of the lease; and he cannot recover on proof of tender of leases invalid be- cause of sundry defects in the levy of the assessment, form of notice of redemption, service of same, etc' It is within the power of the legislature to provide for selling the fee of taxed premises, upon due notice to all parties interested, in order to secure an equitable apportionment of the taxes and assessments among the several present, future and presumptive interests in such real estate.* Also to authorize the sale of certain premises in order to pay assessments upon same and other property belonging to the same owner.^ § 223. Demand. — Where the statute prescribes de- mand for payment of the assessment to be made by the municipality upon the owner, such demand before the 6. Boyd V. Sehlesinger, 59 N. Y. 301; Bensel v. Gray, 62 N. T. 632. 7. Bensel v. Gray, 80 N. Y. 517, affg. 44 Super. 372. 8. Jackson v. Babcock, 16 N. Y. 246. 9. Matter of Trustees of N. Y. P. E. P. School, 31 N. Y. 574. 154 Statutory Sale. sale must be proved in order to render marketable a lease tendered at the assessment sale.^" § 224. Notice to Redeem. — Suffieiency. — Notice to redeem must be published within the period provided by law." Where no such notice has been given and no declaration of sale granted, and the law provides that taxes cease to be a lien after five years, the existence of tax sales over five years old does not render a title unmarketable.^^ A notice directed to A, the owner in fee, and to his heirs or devisees if he be dead, is sufficient; it is pre- sumed that he was alive at the time of sale, and if so his wife, if any, would have no right to redeem.^^ § 225. Proof. — The purchaser at tax sale having served notice to redeem on the widow, children and executor of the deceased owner of the premises^ filed his affidavit of such service alleging therein that he knew the persons served to be the persons mentioned in such notice and the successors in interest to said owner: held, sufficient; there is no requirement that deponent disclose the source of his knowledge." § 226. Treasurer's Certificate. — A tax certificate does not convey a marketable title.^^ When there has been a tax sale of the premises, on which certificates' only have been issued, and the owner tenders to the purchaser an assignment of such certifi- 10. Bennett v. Mayor, 1 Sandf. 485. 11. Bennett v. Mayor, 1 Sandf. 485. 12. Neber v. Hatch, 10 Abb. N. C. 431, affd. 88 N. Y. 657, on opinion below. 13. Rosenblum v. Eisenberg, 123 A. D. 896. 14. Hobbs V. Scott, 122 A. D. 399. 15. Burrowes v. Peck, 19 W. D. 15; Lighthall v. McGuire, 20 A. D. 248. Tax Sales. 155 cates together with the deed of the premises, he com- plies in substance with the contract of sale; his failure to procure cancellation of the sale, if not objected to at the time, is waived.^^ § 227. Owner. — Private property of a municipality is subject to taxation, and may be sold for non-pay- ment of taxes. Title acquired through such sale is marketable." An infant owner has no special rights as against the taxing authority except what are prescribed in the statute. The limitation of time to redeem from a tax sale applies to infants and others under disability unless expressly excepted.^* § 228. Vendee. — Where the law provides that the tax deed shall be made to the purchaser, his legal rep- resentatives or assigns, a deed to his devisees is good.^' 16. Hun V. Bourdon, 57 A. D. 351. 17. Clark v. Sprague, No. 2, 113 A. D. 645. 18. Levy v. Newman, 130 N. Y. 11, affg. 50 Hun, 438, and dictum. 19. Eosenblum v. Eisenberg, 123 A. D. 896. CHAPTER V. PUBLIC GRANTS. 1. Grants by the State. § 230. Patents. — The reservation of mines and min- erals in a patent from the state does not, in the absence of evidence of the existence of minerals on the prem- ises, affect the marketability of title.^ Nor does a pro- vision in such patent that the premises shall be used * ' for commercial purposes only ' ' impose either condi- tion or restriction upon title.^ Letters patent for land on the shore of Staten Island were elaborately considered in Bardes v. Herman, 144 A. D. 772, The premises in question lay originally be- tween high and low water, and it was held that the commissioners of the land office had authority to grant such land. It was further held that although the pat- ent purported to grant only land under water, it clearly intended to convey land contiguous to petitioner's up- land, and would be so construed. " Public grants," said the court, " are not to be so strictly construed as to defeat the intent of the legislature, or to withhold what is given, either expressly or by necessary or fair implication. ' '^ The NicoUs patent of 1666 conveyed to the Harlem freeholders the bed of tidal creeks flowing into the Har- lem Eiver.* The Dongan Charter of 1686 conveyed to 1. Winne v. Reynolds, 6 Paige, 407 (dictum). 2. Abbott V. Curran, 98 N. Y. 665. 3. Followed Warth v. Herman, 207 N. Y. 745. 4. Breen v. Locke, 46 Hun, 291. (156) Municipal Corporations. 157 the City of New York the entire foreshore of the Har- lem, Hudson and East Rivers.^ § 231. Legislative Acts. — Bounty Lands. — Doubts arising under the bounty acts of 1793 and thereabouts can hardly affect many titles to-day. That such titles .were originally open to question and were confirmed by the legislature in 1803 appears from an early case.^ § 232. Salt Lease. — Under legislation providing for the lease of premises for mining salt, the use of part thereof for a dwelling or shed is reasonable and not contrary to the intent of the statute. Even if by vio- lation of the statute the state acquired a right of for- feiture, it could waive same. An assignment of such lease is not a subletting.'' § 233. Escheat Acts. — The state may release title acquired by escheat. Any statute sufficient to show the intent of the legislature to vest title in the donee speci- fied is sufficient for that purpose, though not directly referring to the escheat.* It oftens happens, however, that escheat acts are so carelessly and informally drawn as not to express their purpose in the title. Such acts are unconstitutional and do not pass title.^ 2. Municipal Corporations. § 234. A city may sell real estate acquired in fee simple for which it has no use.^" But it may not even 5. Same ; McFarlane v. Kerr, 10 Bosw. 249. 6. Clute V. Robison, 2 Johns. 595. 7. Hasbrook v. Paddock, 1 Barb. 635. 8. Matter of New York Protestant Episcopal Public School, 31 N. Y. 574. 9. McCabe v. Kenny, 52 Hun, 514. 10. Gearty v. Mayor, 49 How. Pr. 33. 158 Public Grants. with legislative sanction give land away to a benevo- lent institution. Such gift is not legalized by the pro- vision that the proceeds of the premises if sold or leased shall be applied to the benevolent purpose of the institution.^^ On the purchase of premises by a city, tax liens merge in the fee and cease to be encumbrances.^^ It has been held that the city alone, and not its comptroller, can question a purchase of real estate on the ground of unmarketability of title.^^ 11. Mt. Sinai Hospital v. Hyman, 92 A. D. 270. 12. James v. Mayor, 25 W. D. 214. 13. People ex rel. Taylor v. Brennan, 39 N. Y. 522. A remarkably unsatisfactory ease, the authority of which may be doubted. CHAPTER VI. DEVOLUTION OF TITLE NOT UNDER CONTRACT. 1. Condemnation. § 240. Parties contracting for the purchase and sale of real estate must be deemed to contemplate the pos- sibility of the public's intervening and taking the property by eminent domain. In such case vendee has no right to rescind the contract; but he becomes en- titled to the award.^ Where the statute provides that title shall vest in the city on payment being made to the owners, not much proof of such payment is required forty years later upon transfer of title derived from the city.^ Under a statute authorizing condemnation without directions as to the use of the premises when acquired, the failure of the city to use the premises for many years does not render title doubtful. An original pub- lic purpose will be presumed.^ Under a statute providing for the layout of city streets,* private easements of right of way were not lost upon the discontinuance of highways planned by private owners; but where the city upon opening a neighboring street paid an award on the theory that such private easement had l^een lost and the land owner aeepted the award upon the same theory, he is estopped 1. Clarke v. Long Island Realty Co., 126 A. D. 282. 2. Seitz V. Groves, 99 A. D. 629. Receipts signed by A, attor- ney for B, owner, and by C, assignee of D, owner, were held suf- ficient without proof of power of attorney or assignment. 3. Gearty v. Mayor, 49 How. Pr. 33. 4. Laws of 1895, chap. 1006. (159) 160 Escheat. thereafter to claim such right of way as against the subsequent purchaser of land in the bed of the dis- continued highway.^ The court of claims determining the value of land appropriated for the barge canal assumes a marketable title. It has, however, no jurisdiction to decide whether claimant's title is in fact marketable.* 2. Transfer by Statute. § 241. The state does not ordinarily transfer title from one individual to another by statute, but where the title was held upon a mere naked trust it had power to do so.' 3. Escheat. § 242. When the owner of real estate dies intestate leaving no heirs capable of inheriting, the property es- cheats to the state.* Occasionally it happens that a man dies without known heirs of any sort ; but most cases of escheat arise through the limitations upon the right of an alien to take and hold real estate in New York. At common law no alien could inherit. Beginning with this rule, the subject has been regulated by a series of statutes highly technical in character but gradually broadening in scope. These various statutes are construed in the cases cited in this section. It may be remarked that public policy has never shown much inclination to pro- fit by escheat. In 1864 non-resident alien children, though incapable 5. Barber v. "Woolf, 167 A. D. 627. 6. People ex rel. Smith v. Sohmer, 163 A. D. 830. 7. Reformed Protestant Dutch Church in Garden St. v. Mott, 7 Paige, 77. See also Legislative Grants, § 231; Escheat Acts, J 233; Special Statutory Proceedings, 5 87. 8. Lowenfeld v. Ditchett, 114 A. D. 56; Smith v. Doe, 111 Supp. 525. Meegee. 161 of inheriting, had heritable blood and took an estate good except against the state. A foreclosure in which they were made defendants, coupled with release of the state's title, made marketable title in the purchaser.* It requires convincing evidence to establish the fact that any party died without heirs. In its absence title derived through a release from the state is not market- able-io 4. Gift. § 243. A deed to C delivered by B to D accompanied by an instrument executed by B before a single witness reciting that I give, bequeath and convey to C the house and lot we now occupy, this conveyance not to come into force till after my funeral, operates as a gift from B to C passing title as of date of delivery to D.^^ 5. Merger. § 244. A power of appointment in the beneficiary un- der a trust merged in the legal estate when upon the termination of the purpose of the trust the fee had been conveyed by the trustee to the beneficiary.^^ A mort- gage ordinarily merges in the fee when title is conveyed to the mortgagee. The party contending that it did not merge has the burden of proving so.^^ City tax liens merge when the city acquires the fee.^* A tax lease acquired by a trustee merges in the fee.^^ 9. Goodrich v. Russell, 42 N. Y. 177. 10. Matter of Clarke, 131 A. D. 688, affd. 195 N. Y. 613, without opinion. 11. Campbell v. Morgan, 68 Hun, 490. 12. McWhorter v. Agnew, 6 Paige, 111. 13. Krekeler v. Aulbach, 51 A. D. 591, affd. 169 N. Y. 572, on other grounds ; Braun v. Vollmer, 89 A. D. 43 ; Clody v. Southard, 57 Misc. 242; Lynch v. Pfeiffer, 110 N. Y. 33. 14. James v. Mayor, 25 W. D. 214. 15. Buel V. Southwiek, 70 N. Y. 581. 162 Descent, There is no merger when the intent of the parties is to keep the separate estates alive, as where a deed ^® or assignments^ provides that the mortgage shall not merge. Nor will any be inferred against the interest of the parties, as where the widow would lose her dower if it had merged in the fee.^® 6. Descent. § 245. Heirs. — A sister is the immediate heir of de- cedent; she does not inherit through her father.^' Grand- children are included in the term " heirs." ^° There is no presumption that the cousin of an alleged heir is also an heir.^^ When the owner died without ancestors or descendants and without any known collateral relative capable of in- heriting, and none has become known after a period of sixty-seven years, the probability of any such heir turning up is so remote as not to affect title. ^^ When the mother and sister of decedent both resided in England, and were described in the widow's petition for letters of administration as the only next of kin, the inference of escheat arises; and as against a third party claiming several years later as sole heir, the rights of the state should not be disregarded.^* When the heir wastes the property, his heirs are es- topped to object to a sale to pay annuities for which sufficient funds were previously raised but not set apart.^* 16. Abbott V. Curran, 98 N. Y. 665. 17. Parker v. Loring, 10 S. R. 354. 18. People V. Knickerbocker Life Ins. Co., 66 How. Pr. 115. 19. Smith V. Mulligan, 11 Abb. Pr. N. S. 438; Lubrs v. Eimer, 80 N. Y. 171, affg. 15 Hun, 399. 20. Riehter v. Kratenstein, 163 A. D. 868. 21. Sonn v. Kennedy, 51 Misc. 234. 22. Matter of N. Y. P. E. P. School, 31 N. Y. 574. 23. Lowenfeld v. Ditchett, 114 A. D. 56. 24. Wood V. Nesbitt, 62 Hun, 445 (dictum). Creditors. 163 § 246. Half Blood. — Where the son inherits from his father and dies leaving his mother him surviving and also brothers and sisters of half blood, but not of his father's blood, the mother inherits the whole es- tate in fee.^^ But an apparently slight change in the foregoing facts produces radically different results — as where the two sons, A and B, inherit and A dies leaving (as before) his mother and half brothers and sisters, and then B dies leaving the same relatives him surviving. In this case the mother takes only half in fee, namely, the half orig- inally inherited by B from his father; As to the other half, which B inherited from A, his half brothers and sisters, though not of the same blood as B's father, are of the same blood as A and inherit from B.^° § 247. Creditors. — When the premises are sold with- in three years after decedent's death, the statutory remedy allowed to creditors against the real estate has not been barred, and the question arises whether it affects title. The objection was first raised by a pur- chaser in partition upon an unverified statement, and was evidently considered by the chancellor as purely technical." This ruling was followed by the supreme court in Bogert v. Bogert, 45 Barb. 121, which held that the purchaser must show cause to believe that the personalty is insufficient to pay debts. And it is now settled that where vendee takes the affirmative, as on motion for relief from judicial sale ^^ or in an action at law to recover his deposit, he must affirmatively show both debts of the intestate and insufficient personalty.^* 25. Conklin v. Brown, 57 Barb. 265. 26. Wheeler v. Clutterbuck, 52 N. Y. 67; Emanuel v. Ennis, 48 Super. 430. 27. Spring v. Sandford, 7 Paige, 550. 28. Herbert v. Smith, 6 Lans. 493. 29. Moser v. Cochrane, 107 N. Y. 35. The court went on to 164 Devise. Proceedings actually instituted by creditors were naturally held a valid objection.^" In Waring v. Waring, 7 Abb. Pr. 472, the court remarked that the surrogate ought not, after the lapse of seven years since the ap- pointment of administrator and after partition sale of the realty, to entertain claims of creditors; but never- theless ordered the deposit of $6,000 to cover known claims. The creditors' remedy was barred by failure within four years to apply for appointment of administrator, pursuant to chapter 211 of the Laws of 1873.^^ Where the personalty amounts to |10,000 and after advertisement creditors' claims amounting to only $500 have been presented, the possibility of disturbance to title is so remote as to be negligible.^^ The death of a part owner pending partition was held not to affect title; ^^ but the reasoning of the court is unsatisfactory. It is not apparent why the creditors of a part owner should not have as available a remedy as the creditors of the owner of the 'entire premises. 7. Devise. § 248. Creditors. — The rights of creditors against a decedent's real estate are substantially the same state that the case did not raise an abstract question, but was presented on facts which allowed no reasonable doubt. Keitel v. 2immermann, 19 Misc. 581. Several early cases of little authority held that the burden was on the plaintiff in partition. Hall v. Partridge, 10 How. Pr. 188, ordered a referetiee to take proof; Disbrow v. Folger, 5 Abb. Pr. 53, stated that absence of debts and will must be proved beyond reasonable doubt. The above ruling of the court of appeals seems to have been overlooked in the re- upheld on a flimsy distinction by a majority of the New York general term, 55 Barb. 85 ; though it would seem that the decision of the Dutchess general term in Quin V. Skinner, which had not then been reversed, and as was pointed out in the dissenting opinion, was not clearly distinguishable, at least threw doubt on the title. The judgment (but not the reasoning) of the general term was affirmed by the court of appeals, 45 N. Y. 531, in an opinion virtually overruling Quin v. Skinner. The upper courts did not discuss the interesting question of marketability presented by this situation, as to which see § 25, ante. § 265: Ptirpose. — The purpose of a power is often the decisive test of its validity. If, for instance, it exists only to carry out certain trusts, it fails with the invali- dity of the trusts.^* The supreme court has held that a power general in terms is ipso facto valid for all purposes.^^ The general rule is that the extent and duration of a power are limited to the purposes expressed.^" Where it is clear that testator intended the power to be effec- tive only for the division of the estate on the death of the life tenant, it may not be exercised before that time.^^ 14. Benedict v. Webb, 98 N. Y. 460. 15. Wait V. Cerqua, 7 Supp. 110, afld. 117 N. Y. 654, without opinion; Lindo v. Murray, 91 Hun, 335, affd. 157 N. Y. 097, on other grounds. In neither of these eases was there any need for the executor to sell in order to pay debts or legacies. 16. Dominick v. Michael, 4 Sandf. 374; Morton v. Morton, 8 Barb. 18; O'Reilly v. Piatt, 80 A. D. 348. 17. Ranhofer v. A. C. & H. M. Hall Realty Co., 143 A. D. 237. Construction. 177 A will devised to trustees to pay the income to M for life, then to divide into seven parts and pay the incomes respectively to each of seven children for life, remainders to their issue or in default thereof to testator's heirs, with power to the trustees during the continuance of the trust to change investments and to sell for that purpose. M and two of the children predeceased testator, and a third child died after him. It was held that the trustees could not sell the premises as a whole; that as to two sevenths they never took title, and as to another seventh the trust, and with it the power, had termin- ated.i^ Where it is clear that the purpose was broader than for a single beneficiary, the power also will be given broader effect." A will devised to testator's wife B for life, charged with the support of his mother A, remain- der to his daughter M, appointing B executrix with full power to sell and dispose of all or any part of my real or personal estate as in her judgment may seem best and to invest the proceeds as she may deem best for the bene- fit of M. After M's death, B sold ; but her deed as ex- ecutrix was refused by the purchaser who objected that the power had lapsed. The court held that testator's intent to provide for.B for life and to give her discretion in the management of the estate was so apparent as to rebut the presumption that the power is not given to an executor for his individual benefit, and that the sale was valid.20 Whether the power is beneficial is a question of con- struction depending upon the purpose for which it is granted. When conditional upon the approval of the 18. Brunner v. Meigs, 64 N. Y. 506, a%. 6 Hun, 203; and see Kent V. Shepard, 115 A. D. 64, affd. 188 N. Y. 566, without opinion. 19. Hutchings v. Baldwin, 7 Bosw. 326; Lahey v. Kortwright, 132 N. Y. 450, approving 56 Super. 527. 20. Cotton V. Burkelman, 142 N. Y. 160. 178 Power of Sale. surviving heirs, it is not beneficial f^ nor when accom- i panied by a trust, as provided by Real Property Law, ' § 137 (§ 117, Real Property Law of 1896 ),22 being in part for the benefit of others than the donee of the power. The attempt in Strube v. Leutzbach, 12 Misc. 216, to construe the power as beneficial is very strained, for it was merely the common direction to sell and divide and evidently appurtenant only to the exercise of the executor's duties as such. A general power of sale for the purpose of paying en- cumbrances, dividing the estate or otherwise, may be ex- ercised by the executor for the sole purpose of paying his own claim against the estate.^^ A power to sell real estate to pay legacies is valid ;^* but where the executors had ample funds to pay the legacies, a power to sell as they deem most expedient for the legatees hereinbefore referred to did not authorize a sale; nor could they convey good title to a purchaser with notice. ^^ A power to sell to provide annuities may in the absence of sufficient personalty be imperative.^^ It is not ex- hausted merely by the sale of sufficient realty, unless funds are actually set apart for the annuitants.^'' A testator who was seized of an undivided quarter of certain land gave his executrix power to make actual partition and to sell to pay debts or make partition. The vendee of a parcel incapable of actual partition 21. Aekerman v. Gorton, 67 N. Y. 63, rvsg. 6 Hun, 301. 22. Weinstein v. Weber, 178 N. Y. 94, a%. 78 A. D. 645, approv- ing 58 A. D. 112; Coleman v. Beach, 97 N. Y. 546. 23. O'Flynn v. Powers, 136 N. Y. 412, aiifg. 21 Supp. 905. 24. McGarry v. McMahon, 124 A. D. 607. 25. Hovey v. Chisholm, 56 Hun, 328; and see Kent v. Shepard, 115 A. D. 64, affd. 188 N. Y. 566, without opinion. 26. Boehmcke v. McKeon, 119 A. D. 30. 27. Wood V. Nesbitt, 62 Hun, 445 {dictum). This case has the authority of dicta only, because the decision was subsequently recalled. 19 Supp. 423. Implied Power. , 179 rejected the title, whereupon a partition suit was brought in which it was adjudged that the power of sale was not subsisting. On appeal the court, reversing judg- ment, held that the power was valid and could be exer- cised for the purpose of partition as sought in the ac- tion.^^ § 266. Implied Power. — Not more than a generation ago the supreme court described the doctrine of im- plied power of sale as " certainly an obscure and un- certain one;"^^ but it is now familiar and well estab- lished. As a matter of interpretation the power may be im- plied from the phraseology of the will. Such words as " pay over " and " said funds " make clear the in- tent to convert into money before division; ^^ so of the phrase ' ' sold on time if to advantage. ' ' ^^ Such a phrase as — the remainder ' ' if any ' ' I give and devise to my chidren — imports an authority to consume the principal of the estate and hence to sell the real estate ; ^^ and so of — ' ' all that may remain. ' ' ^^ Whether a general direction to invest and a direction to pay cash on a certain contingency authorized a sale was cautiously pronounced in Salisbury v. Ryon, 105 A. D. 445, too doubtful to decide in the absence of the • remaindermen. A really doubtful question arose in Alkus V. Groettmann, 60 Hun, 470, where defendant re- 28. Knapp v. Knapp, 46 Hun, 190. 29. Armstrong v. Wernstein, 6 Supp. 148. 30. Burhham v. White, 117 A. D. 515. 31. Stewart v. Hamilton, 37 Hun, 19. 32. Leggett v. Firth, 137 N. Y. 7 (dictum). 33. Mitchell v. Van Allen, 75 A. D. 297. Tor reasons unexplained the general term in Doyle v. Mulvihill, 16 W. D. 361, held that a power to the executors to apply so much of the " proceeds " as they deemed proper to the use of the life tenant did not confer a power of sale. 180 Power of Sale. lied on the words " to be paid," and the facts that the land was not adapted to actual partition and that the personalty was insufficient to pay the legacies, while plaintiff, arguing that the words were too slight to imply a power, pointed to other words importing a tenancy in common and urged that a former sale might have satisfied such power if it had existed. The bare provision that the residue be "divided" into nine equal shares and that each nephew have one ninth of said remainder is not sufficient to create a power of sale.^* The doctrine is, however, broader than a rule of con- struction. It extends to whatever is necessary to ac- complish testator's purpose, as where a complete dis- tribution cannot be accomplished without a sale of the real estate.^^ A power will be implied whenever the object of the trust would fail unless the executor could convert the real estate into money .^^ § 267. Charges. — Where debts, legacies or annuities are charged on the land there can be no question about the executor's power of sale.^'' In such cases, and those approaching them, the inquiry is rather as to the extent of the charge and the effect of the words and circumstances relied on to create it. The charge of debts has a special importance since by depriving creditors of their usual remedy against the land, it enables the executors to give clear title within the three-year limit. In Coogan v. Ockershau- sen, 55 Super. 286, the will devised to the exeputors in trust, after directing that all debts be paid as soon as 34. Murdock v. Kelly, 62 A. D. 562. 35. Messenger v. Casey, 18 W. D. 71. 36. Morton v. Morton, 8 Barb. 18; Van Winkle v. Fowler, 52 Hun, 355. 37. White v. Kane, 51 Super. 295. Charges. 181 possible. The personalty was not sufficient to pay debts. It was held that the debts were impliedly, thougk not expressly, charged on the real estate, and hence- there was a valid implied power to sell free from the- rights of creditors. The question was more carefully considered in Parker v. Beer, 173 N. Y. 332, where the following rule, was laid down: " The statutory re- quirements [Code Civ. Proc, § 2759], if not literally followed, must be met by clear testamentary expres- sions, in order to deprive creditors of their statutory right to a judicial sale." Where legacies amounting to more than |50,000 were bequeathed by a will containing a general power of sale, and the personalty was insufficient to pay any of them, it was held that the entire estate was charged with the payment of the legacies. Bequests so far be- yond the resources of the personalty were inconsistent with any other theory.^* A will directed that the gen- eral legacies be charged on the real estate, and author- ized the executors to sell to pay same. The personalty was insufficient to pay said legacies, and the executors accordingly sold premises the title to which was after- wards questioned on the ground that the legatees still had liens thereon. It was held that the power of sale was necessary to carry out testator's intention to pro- vide for the legatees out of the proceeds of the realty j and the title was sustained.^^ Clear language is required to charge annuities on the real estate. Where the will gave executors a discre- tionary power of sale and then provided that numerous annuities should be a first charge on my estate, it was held that the word " estate " referred only to testa- tor's title, not to the corpus of his property. A charge on the realty would be inconsistent with a discretion- 38. Anderson v. Davison, 42 Hun, 431. 39. Eecht v. Herschman-Bleier-Edelstein Co., 139 A. D. 300. 182 Power of Sale. ary power of sale; and the latter was upheld at the ex- pense of the former.*" From a provision that certain annuities shall be payable out of two thirds of the resi- due but not charged on the realty, there is no inference that another annuity payable out of the other third is a charge.*^ § 268. Equitable Conversion. — Where there is equi- table conversion, the executors have power of sale al- though the will may contain no express authorization. Equitable conversion may be implied from a general scheme treating real estate as personalty, coupled with words, such as a direction to ' ' invest, ' ' which by them- selves would have comparatively slight significance.*^ When there is also an express power of sale, the power is valid and devisees take subject to its execution.*^ Such a power is imperative." The need of funds to satisfy legacies and annuities far in excess of the per- sonalty is a circumstance indicating the intent equi- tably to convert.*^ An attempt to limit the time within which the sale may be made is disregarded when there is a clear intention to convert.*^ The conversion con- templated may be gradual, surviving the first life estate." 40. Bradford v. Mogk, 55 Hun, 482. 41. Bangs v. Hill, 25 W. D. 9. 42. Bangs v. Hill, 25 W. D. 9; Greenland v. Waddell, 116 N. Y. 234. 43. Crittenden v. Fairchild, 41 N. Y. 289. The doubt in this case was caused by the erroneous decision in Quin v. Skinner, 49 Barb. 128. A similar will to-day would hardly be questioned. Sonn v. Kennedy, 51 Misc. 234. 44. Boehmcke v. McKeon, 119 A. D. 30; Fish v. Coster, 28 Hun, 64, affd. 92 N. Y. 627, on opinion below. 45. Same; McGarry v. McMahon, 124 A. D. 607; Wood v. Nes- bitt, 62 Hun, 445 (dictum). 46. Waldron v. Schlang, 47 Hun, 252; Mott v. Ackerman, 92 N. Y. 539. 47. Hutchings v. Baldwin, 7 Bosw. 32B. DiSCKETIONARY POWEE. 183 Real estate acquired by the executors on foreclosure of mortgage is regarded as personalty and requires no testamentary authorization to enable them to sell.*' § 269. Discretionary Power. — Where the power is not necessary in order to carry out the purpose of the will and there is no positive direction to sell, it is deemed a merely discretionary power *' — the opposite of the imperative power above described. Grood examples of a discretionary power are shown in Dominick v. Michael, 4 Sandf. 374, and Miller v. Wright, 109 N. Y. 194. In each the will or deed au- thorized the donee in his discretion to sell, mortgage or lease, for the purpose in part of providing for the maintenance of certain beneficiaries. Such a power is not inconsistent with the devise of a vested estate in the same property or with authority in the trustees to collect rent.^" Where it exists, the judgment of the executors that the sale is for the ad- vantage of the estate is conclusive.^^ A will provided : I authorize and empower my exec- utors in their discretion to sell and convert all my real estate and direct them to divide the net proceeds into three parts and invest same and hold same on trust, etc. Held: The discretion was only as to the time and circumstances of the sale. The directions as to con- version and investment made a sale mandatory .^^ 48. Cook V. Ryan, 29 Hun, 249. This rule seems to have been overlooked in Leggett v.. Hunter, 19 N. Y. 445. 49. Scholle v. Scholle, 113 N. Y. 261. 50. Cussack v. Tweedy, 126 N. Y. 81, a£fg. 56 ,Hun, 617; Dana V. Jones, 91 A. D. 496. 51. Carroll v. Conley, 9 Supp. 865, aflfd. 124 N. Y. 643, without opinion. 52. Carpenter v. Bonner, 26 A. D. 462. 184 Power of Sale. * § 270. Power in Trust. — A power of sale reserved by the grantor, with a provision that the proceeds be held in trust, is not inconsistent with a grant of the fee; it is valid as a power in trnst.^^ Such power may ex- tend to the whole estate and supersede some limited authority or relation affecting a portion only. A gen- eral power of sale, whose exercise would facilitate the distribution of the estate, is not limited by a special power to convey an undivided fifth to E, one of the beneficiaries, absolutely; E took an estate in fee, but subject to the power of sale.^* Nor is such a power defeated by the fact that the trustee is also the sole beneficiary of a portion of the estate; ^^ or that the ex- ecutor is sole beneficiary of the entire estate.^^ But a trustee who is also sole beneficiary of the entire estate cannot execute a power of sale.^'' § 271. Invalid Provisions. — When the will is partly void, the power of sale may or may not be valid. A will bequeathing a legacy to be accumulated beyond the period permitted by law contained a general power of sale. As the power was not solely to provide funds for the void bequest, but mainly to effectuate the dis- tribution of other valid bequests, a purchaser from the executor was required to complete.^^ Similarly of a trust deed.^' 53. Johnson v. Reeves, 48 How. Pr. 505. 54. Taber v. Willetts, 1 A. D. 285, affd. 153 N. Y. 663, on opinion below. 55. Sweet v. Schliemann, 95 A. D. 266. 56. Heiferman v. Scholder, 134 A. D. 579. 57. Haendle v. Stewart, 84 A. D. 274. 58. Wilson v. Lynt, 30 Barb. 124; Graham v. Ackerly, 120 A. D. 430; and see Forster v. Winfleld, 142 N. Y. 327 (dictum). It is upon this ground that the ease of O'Keeffe v. Westphal, 139 A. D. 79, should also be rested; for vendee's first objection seems en- tirely justified so far as it goes. 59. Dooper v. Noelke, 5 Daly, 413. Sale. 185 "Where the devise was to trustees till E should reach twenty-one, or if not living would have reached twenty - one, the trust was pronounced wholly void, and the power of sale fell with it, since the proceeds would have been subject to the same invalid restriction.**" The case of Kennedy v. Hull, 15 W. D. 95, an earlier and less carefully considered decision, seems opposed to this doctrine; but unless it can be distinguished, it must be considered overruled in principle by the cases cited. If the case is on the border line' of illegal suspension of the power of alienation, it is not helped out by the power of sale, and the purchaser may be given the benefit of the doubt." § 272. Sale. — Under a power of sale, discretionary,^^ to pay debts *' or in trust,^^ the title to the real estate vests in the devisee, but when exercised the power re- lates back to the time when the will became operative. In Haas v. Kuhn, 67 Hun, 435, it was held that a party wall agreement made by the life tenant did not affect title tendered by the executrix under power of sale, notwithstanding the fact that they were the same indi- vidual. A rule of practical importance established by Rob- erts V. Gary, 84 Hun, 328, is that a conveyance by the trustee to the remainderman upon the termination of the trust is not regulated by the power of sale and may be disregarded; it is wholly unnecessary. 60. Hagemeyer v. Saulpaugh, 97 A. D. 535; and see Benedict v. "Webb, 98 N. Y. 460. 61. Beams v. Mela, 10 Supp. 429. 62. Kinnier v. Kogers, 42 N. Y. 531; Buchanan v. Tebbetts, 69 Hun, 81; Dana v. Jones, 91 A. D. 496. 63. Street v. Gordon, 41 A. D. 439. 64. Taber v. Willetts, 1 A. D. 285, affd. 153 N. Y. 663. 186 Power of Sale. A power of sale is not and does not include a power of exchange, even on the consent of all the benefi- ciaries; ^^ nor where the land is a portion of that held in common with another person with whom the ex- change is made, so that the transaction' has the charac- teristics of a voluntary partition.''^ A power to sell for cash, or partly for cash and partly on mortgage, is not well exercised by a deed to E reciting that the testator and E had been seized in common and that the deed is made in consideration of a division of the estate.^'' In Smith v. Coffin, 34 Hun, 635, a contract for ex- change was enforced, though the executors had only a power of sale; but this seems to have been an inad- vertence, as it does not appear that the distinction was called to the attention of the court. It has been suggested that a power of sale, coupled with the provision that the proceeds shall be consid- ered leal estate, amounts to a power of exchange.^^ A conveyance as compromise of litigation is not a sale within the meaning of the usual power of sale.^* A recent decision at trial term '" that a conveyance to avoid foreclosure is a valid exercise of the power of sale cannot be reconciled with this rule and cannot be considered to state the law. § 273. Exercise. — Survival. — A power of sale to sev- eral executors survives in the surviving executor after the death of his co-executors.'^ It may also survive 65. Woerz v. Rademaoher, 120 N. Y. 62. 66. Turco v. Trimboli, 152 A. D. 431. 67. Huber v. Case, 93 A. D. 479. 68. Mayer v. McCune, 59 How. Pr. 78 (dictum). 69. Scholle v. SchoUe, 113 N. Y. 261. 70. Clody V. Southard, 57 Misc. 242. 71. Carroll v. Conley, 9 Supp. 865, affd. 124 N. Y. 643, without opinion. Exercise. 187 the death of beneficiaries and the vesting of the fee in the remaindermen.''^ As recently as 1883 it was pronounced a doubtful question whether any power could survive the death of all the executors named in the will ; ''^ but it is now well settled that while a discretionary power cannot be delegated and does not survive,''^ a general, imper- sonal, imperative power of sale passes with the office and can be executed by the donee's successor under whatever title and however appointed.''^ A will devised to B and C in trust with power of sale in their discretion, and provided that in case both re- fused to serve, died or resigned, A should be trustee. Both B and C qualified, but C died. The purchaser from B as surviving trustee objects that B is also sole beneficiary. Held: The alternative appointment of A in case both B and C failed indicated testator's intent that either B or C might serve alone. The power sur- vived and could be exercised in spite of B's beneficial interest.™ The fact that, executors to whom the property was devised in trust were directed to reinvest is mentioned in Danaher v. Hildebrand, 72 Misc. 240, as a reason why the power survived; but there seems no basis for any limitation of the survival of a naked power, as implied.'" 72. Cussack v. Tweedy, 126 N. Y. 81. 73. Paret _y. Keneally, 30 Hun, 15. 74. Coleman v. Beach, 97 N. Y. 546. 75. Farrar v. McCue, 89 N. Y. 139, rvsg. 26 Hun, 477; Mott v. Ackerman, 92 N. Y. 539; Kortright v. Storminger, 49 Hun, 249; Eoyce v. Adams, 123 N. Y. 420, affg. 57 Hun, 415; Wood v. Nesbitt, 62 Hun, 445 (dictum) ; Lahey v. Kortright, 132 N. Y. 450; Clifford V. Morrell, 22 A. D. 470; Myers v. McCuUagh, 63 A. D. 321; Ayers V. Courvoisier, 101 A. D. 97. 76. Weeks v. Frankel, 197 N. Y. 304, rvsg. 128 A. D. 223. 77. Lewine v. Garardo, 60 Misc. 261. 188 PowEE OF Sale. § 274. Failure of Donee to Act. — It frequently hap- pens that through renunciation, failure to qualify, death, resignation or removal the persons named in the will or deed as executors or trustees are not the ones hy whom the power granted is attempted to be exercised. The question then arises how far the power can be exercised by others than all the original donees or their survivors. It was said in an early case that a power of sale granted to executors and trustees hereinafter named vests in all the individuals named, whether they qualify or not ; that a person who had renounced nevertheless held the power as sole surviving executor and trustee; and obiter, that even a new trustee appointed by chancery would not succeed to such power.'^ But this is much too broad and by no means represents the law to-day — if it ever did. The power in that case was pronounced discre- tionary, and the decision should at best be limited to that class of powers. It is implied in Farrar v. McCue, 89 N. Y. 139, that a discretionary power does not sur- vive the death of one trustee and the resignation of the others. What was actually decided was that successor trustees appointed by the supreme court could exercise a general imperative power. On the other hand, it appears to have been directly decided that even a discretionary power can be exercised first by the one trustee who qualified, out of three named in the will, and second by a substituted trustee appointed by the court after the resignation of the testamentary trustee. The will construed in Leggett v. Hunter, 19 N. Y. 445, affg. 25 Barb. 81, authorized the trustees to sell and dispose of any part of the estate at public or private sale at such time and in such manner and for such sum as may in the exercise of their judgment seem most expedient. It seems to have been conceded that there was no equitable conversion, and the court ex- 78. Dominick v. Michael, 4 Sandf. 374. Exercise. 189 pressly refers to " the exercise of his discretionary power granted in the will." It was held that the power sur- vived and enabled the substituted trustee to give good title on the sale of premises which had been purchased as an investment after testator's death. A statute authorized the sale of premises by " said trustees." The premises were devised to executors in trust. Three executors were appointed and all qualified, but B was removed by the surrogate, and declined to join in the deed. It was held that the acting trustees, A and C, could give marketable title.''^ A will devised with the condition that the real estate should be sold and the money realized divided, and ap- pointed F and G executors. Both qualified, but the appointment of F was promptly revoked by the surro- gate. A deed by G, as sole acting executor, was held to convey marketable title.^" In Fleming v. Burnham, 100 N. Y. 1, it was conceded that where letters testamentary were issued to A, B and M, and B never acted, nevertheless if he had not re- nounced, or if having qualified he had not been dis- charged, a deed executed by A and M, as acting execu- tors, was not well executed. The power in that case was mandatory. Where there is equitable conversion a deed by the sole qualifying executor is sufflcient.^^ Or by less than the entire number named where the will appears to con- template that all may not act.^^ The subject is now covered in part by statute. Un- der the authority of 2 R. S. 109, § 55, the sole qualifying executor may exercise a power of sale given jointly to 79. Matter of Bull, 45 Barb. 334. The early case of Champlin v. Parish, 3 Edw. 581, to the contrary, does not represent the law. 80. Franck v. Schmitt, 24 W. D. 371. 81. Bangs v. Hill, 25 W. D. 9. 82. Ogden v. Smith, 2 Paige, 195. 190 Power of Sale. him and another.*^ A will appointed A, B and C execu- tors and trustees, and gave to them or any two of them acting in any matter as such executors or trustees full power and authority to transact business, invest and reinvest, sell and convert into personalty any realty, also as executors or as trustees or as both to execute deeds. A and B renounced. It was held that the will did not intend to limit the statute (Code, § 2642) ; and a deed by C, as sole executor and trustee, was sustained.** That statute was, however, held not to prevail against a clear testamentary intent that the power should not exist in a single executor, as where the will authorized my executors to sell in their joint discretion, that is to say, one is not authorized to sell without the consent and co-operation of the other. '^ The Code also provides now ( § 2818 ) for the case of a trustee disqualified by death, renunciation or other rea- son. This statute was applied to a testamentary pro- vision that so soon as the number of trustees be reduced below three, then the survivors shall, with the consent of the cestui, increase their number to three, four or five ; upon the cestui's refusal to consent to the appointment of a third trustee, the two survivors could convey. If the testator intended to limit their power, said the court, he should have said so very clearly.*^ A will appointed the plaintiffs A and B, together with W, R, T, D and J, executors, with power of sale to them and their survivors, and authorized and requested them whenever reduced in number to three to appoint others. R and T died before testator ; D and J failed to qualify, though they do not appear formally to have renounced ; 83. Kerr v. McAneny, 17 W. D. 102; Correll v. Lauterbach, 12 A. D. 531, a% 14 Misc. 469, affd. 159 N. Y. 553, on opinion below (dictum). 84. Draper v. Montgomery, 108 A. D. 63. 85. Hyatt v. Aguerro, 56 Super. 63. 86. Lane v. Hustace," 154 A. D. 636. Exercise. 191 A, B and W qualified, but W has died. It was held that A and B, as surviving executors, could convey. The executors not named in the letters testamentary are su- perseded thereby, said the court ; and the power of sale is independent of the provision in regard to three execu- tors, which is merely an authorization.*^ The fact that the sole individual to qualify as execu- tor and trustee is the sole beneficiary for life is not fatal to a power given to executors for the general benefit of the estate.*' § 275. Administrator mth the Will Annexed. — Whether an administrator with the will annexed can ever exercise a power of sale is a problem that has caused much confusion. When it first arose in 1839, the su- preme court decided that the power was personal and could under no circumstances pass to the administra- tor.*' On error the judgment was affirmed by the court of errors '" on the narrow ground that because the sale was not at auction as required by a statute then in force,'^ the title was not such as a purchaser could be compelled to take. Several members expressed the opin- ion that the administrator could have conveyed after a sale at auction; but the court declined to vote on that question. The opinion of the supreme court seems never to have been formally overruled in any marketability case, though stated in Matter of Anderson, 5 Leg. Obs. 302, to have been overruled in principle. It was rein- forced by an elaborate ten page dictum in 1851,'^ ac- cepted ohiter by the court of appeals as expressing the 87. Landon v. Bauer, 23 W. D. 95. 88. Heiferman v. Scholder, 134 A. D. 579. 89. Conklin v. Egerton's Administrator, 21 Wend. 430. 90. Egerton's Administrator v. Conklin, 25 Wend. 224. 91. 2 R. S. 109, § 56; repealed by Laws of 1837, p. 532, § 43. 92. Dominick v. Michael, 4 Sandf. 374. 192 Power of Sale. law in 1863,'^ and cited as recently as 1883 as of suffi- cient authority to cast doubt on an otherwise valid title.^* It has now disappeared into the limbo of cases discredited but not formally overruled. The decisions establishing the administrator's power as it now exists began in 1882 with Fish v. Coster, 28 Hun, 64, affd. 92 N. Y. 627, on opinion below, where the will expressly gave the same power of sale to the admin- istrator with the will annexed; but the court went on to say that there was equitable conversion and the ad- ministrators took the real estate as personalty and with the same power. This doctrine has been followed in all later cases and has been applied to wills containing no reference to the administrator and less explicit direc- tions to sell.^^ It is assumed in these cases that a discretionary power would not pass. But where the discretion has already been exercised by the executors in making the contract, the execution of the deed involves no further discretion and may be performed by an administrator with the will annexed.** The cases show a disposition to include as much as possible within the category of imperative powers.^^ A will provided that should C not desire to occupy the premises and pay taxes, and should he refuse to make repairs, I authorize my executors to sell same and in- vest the proceeds. C had so refused, and the adminis- trator with the will annexed undertook to sell. Against the vendee's contention that the deed was unauthorized, 93. Roome v. Phillips, 27 N. Y. 357. 94. Paret v. Keneally, 30 Hun, 15. 95. Hickey v. Peterson, 9 Supp. 917; Wood v. Nesbitt, 62 Hun, 445 (dictum); Clifford v. Morrell, 22 A. D. 470; McGarry v. Mc- Mahon, 124 A. D. 607. 96. Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C. 219; Mott V. Ackerman, 92 N. Y. 539. 97. Carpenter v. Bonner, 26 A. D. 462. Exercise. 193 the court held that the provision for sale was mandatory, though using the word " authorize," and that as no per- sonal discretion was involved, the power passed and the deed tendered was good.^^ § 276. Substituted Trustee. — Where there is equitable conversion the power of sale vests in the executors as such ; and w'here an individual who was at the time sole surviving executor and trustee resigned as trustee, the power nevertheless remained in him as executor and did not pass to a substituted trustee.^' The court of ap- peals in reaching that conclusion drew the line between the powers of executors and those of trustees so rigidly that the inevitable inference is that the power of sale can never, where there is equitable conversion, vest in a substituted trustee. That, however, seems not to be the law. If the executors are all dead and no adminis- trator has been appointed, the power may, as held by the appellate division, first department, be exercised by a substituted trustee.^"" A power of sale to trustees, not personal but inter- woven with the general scheme of distribution, passes to trustees substituted under the general equity power of the court. This question, cautiously reserved in Lahey v. Kortright, 132 N. Y. 450, was fully considered and decided in Myers v. McCullagh, 63 A. D. 321. The statutory authority to substitute a trustee has been relied on in some of the cases as furnishing a rea- son why the power should pass ; ^"^ but the argument seems to apply equally to the general equity jurisdic- 98. Ayers v. Courvoisier, 101 A. D. 97. 99. Greenland v. Waddell, 116 N. Y. 234. ^ 100. Faile v. Crawford, 30 A. D. 536. 101. 1 R. S. 731, ^ 71, cited in Lahey v. Kortright, 132 N. Y. 450; see also Kortright v. Storminger, 49 Hun, 249, construing same power; Code Civ. Proc, § 2818, cited in Royce v. Adams, 123 N. Y. 402, affg. 57 Hun, 415. 194 Power of Sale. tion of the supreme court, and it is not likely that th& distinction will ever throw doubt on any title.^"^ § 277. Good Faith. — Where trustees with power of sale convey to a third person, who on the same day and for the same consideration conveys to the benefic- iaries, it is apparent that the third person is a mere conduit to pass title to the cestuis in violation of the trust; and no purchaser can get marketable title until the possible claims of the remaindermen are disposed of."3 An interval of thirty-five days between the two con- veyances is still so short as to afford strong evidence- of a scheme to defeat the rights of the remaindermen, and to throw doubt on the title.^"* .But where one remainderman and two out of three executors refuse to join in an agreement for the immedi- ate division of the estate, signed by all the other parties interested, the abortive document is no evidence of an intention to violate the trust.^"^ A sale to an executor's wife who is also a benefi- ciary, when made after efforts to sell to outsiders and for a larger price than could be obtained in any other way, gives marketable title.^"^ § 278. Reinvestment. — Whether the power applies to real estate purchased with the proceeds of testator's land is a practical question of some importance in the administratioii of estates, and should not be overlooked by counsel drawing a will. It was considered in Hatt V. Hagaman, 12 Misc. 171, where the court not finding ia 102. Sweet v. Schliemann, 95 A. D. 266. 103. McPherson v. Smith, 49 Hun, 254. 104. Stokes V. Hyde, 14 A. D. 530. 105. Champlin v. Haight, 7 Hill, 245. 106. Wyeth v. Sorchan, 38 Misc. 173. How Executed. 195 either the language or the scheme of the trust deed any power to sell such real estate, decided that the question was at least serious and not free from doubt, and de- clined to enforce the trustee's contract of sale. A will, after giving trustees discretionary power of sale, directed them to invest the proceeds in mortgage or purchase of real estate, and afterwards they may if they think best sell the same or any real estate so pur- chased, with the allowance of the court of chancery. This was held to authorize the resale of premises pur- chased on foreclosure of a purchase-money mortgage.^"^ § 279. How Executed. — Formerly it was required by statute ^°* that an executor's sale should be at auc- tion ; and this rule was applied to sales by an adminis- trator with the will annexed."^ It was not applied where the will directed executors to sell at the time and in the manner seeming most advantageous, after three weeks' advertising in newspapers.^" The law was re- pealed so long ago that it can hardly affect titles to-day. A direction to sell for cash will be construed as direc- tory only and will not invalidate title under a sale which provided for purchase-money mortgage."^ Foreign executors may execute a power of sale granted nnder a will duly probated in another state and recorded in New York ; they act not under authority derived from the probate court, but as donees of the testator.^^^ Es- pecially is this true where the power is given to them not as executors but in personal trust."^ ■ Where the power of sale vests in trustees, a deed by 107. Leggett v. Hunter, 19 N. Y. 445, affg. 25 Barb. 81. 108. 2 R. S. 109, § 56; repealed by Laws of 1837, p. 532, 5 43. 109. Egerton's Admr. v. Conklin, 25 Wend. 224. 110. M'Dermut v. Lorillard, 1 Edw. Ch. 273. 111. Faile v. Crawford, 30 A. D. 536. , 112. Bromley v. Miller, 2 T. & C. 575. 113. Pollock V. Hooley, 67 Hun, 370. 196 PowEE OF Sale. executors, though the same individuals, does not pass title."* Where the donee of the power has independent inter- ests, the intent to convey as donee must be expressed, or the deed will be construed as relating to the other in- terests only. A will devised to the widow W for life with power of sale. The executors undertook to sell and on their deed was endorsed by W — I do grant, remise, release and quitclaim all my right, title, interest and dower in said premises, with an acknowledgment refer- ing to same as a release of dower. Held: W's convey- ance was a release of dower or at most a grant of the life estate. There was no valid exercise of the power of sale."^ A will giving a power of sale to executors directed them to invest the proceeds in first mortgages. In order to finance a sale to M they mortgaged for |5,000 to L and then took from M |5,000 cash and a second mortgage for |7,000. A vendee who has agreed to pay the first mort- gage now objects that the power of sale was not properly exercised. Held : Though the sale was not made in the manner directed and the grantee M was cognizant there- of, yet the result is substantially in accordance with the will, and the cestuis have no ground for complaint. The discharge of the first mortgage will restore everything to its proper status. To accomplish this the executors have sufficient cash — besides the obligation of the de- fendant, who cannot complain, as his title will thereby be improved."" § 280. Consent. — If the instrument creating the power of sale specifies that it shall be exercised only 114. Brooks v. Terry, 14 Supp. 238; Greenland v. Waddell, 116 N. Y. 234. 115. Weinstein v. Weber, 178 N. Y. 94. 116. Siegel v. Anger, 13 Abb. N. C. 362. How Executed. 197 on the consent of certain persons, the condition is valid and no sale may be made without such consent."' It follows that upon the death of an individual whose consent is required, the power wholly fails."* Where the consent required is that of trustees and the trustees named in the will have all renounced or died, the con- sent of the supreme court must be obtained."^ A provision that the executors may sell, the consent of my wife and of my sons if of full age being first had, does not postpone the execution of the power; it merely imposes as a condition the consents of the widow and such, if any, sons as are of age.^^" The consent of an individual may be expressed by the execution of a contract ^^^ or of a deed either indi- vidually or as executor.^^^ But whether an executor's consent may be so expressed has been questioned.^^^ The persons whose consent is necessary are virtually donees of the power and as such cannot be pur- chasers.^^* § 281. Consideration. — Executors may not sell for a nominal consideration.^^^ A confirmatory deed by executors without consid- eration does not convey marketable title where the ex- 117. Brinckerhoff v. Phelps, 24 Barb. 100, approved 40 N. Y. 59. 118. Kissam v. Dierkes, 49 N. Y. 602; Guliek v. Griswold, 160 N. Y. 399, affg. 14 A. D. 85. This rule has been somewhat modi- fied by Real Prop. Law, § 174. 119. Correll v. Lauterbach, 12 A. D. 531, afld. 159 N. Y. 553, on opinion below. 120. Hamilton v. N. Y. Stock Exchange Bldg. Co., 20 Hun, 88. 121. Danaher v. Hildebrand, 72 Misc. 240. 122. Behrman v. Von Heyn, 15 Supp. 604. 123. Gardner v. Dembinsky, 52 A. D. 473 (dictum). 124. Stokes v. Hyde, 14 A. D. 530; Gardner v. Dembinsky, 52 A. D. 473, affd. 170 N. Y. 593, without opinion. 125. Bernstein v. Solomon, 42 A. D. 621. 198 Power of Sale. ecutors still have a contingent estate to dispose of un- der their power of sale; nor is the transaction validated as to a grantee with notice because the deed, without referring to the previous grant, expresses a substantial consideration.^^^ Where the actual consideration is the settlement of a foreclosure suit by obtaining a relinquishment of claim for deficiency, an executor's deed, thotigh ex- pressing the consideration of |100, does not convey good title; the transaction is not really a sale.^^'' But where a foreclosure resulted in a deficiency of |2,650, a conveyance by the executor in consideration of |50 and the release of the deficiency judgment is within both letter and spirit of the power of sale.^^* § 282. Reconversion. — The beneficiaries may all join in an agreement to take the real estate in kind instead of the proceeds as directed by the will. In such case equitable conversion is prevented, or more accurately, the land is reconverted. No conveyance from the ex- ecutors is necessary,"^ and it is no objection to title that the executor assumes to convey for a nominal con- sideration.^^" But the power of sale is not defeated by the attempt of less than all the devisees to take the realty.^^^ 126. Harris v. Strodl, 132 N. Y. 392. 127. Scholle v. Scholle, 113 N. Y. 261. The foreclosure of this parcel proceeded to judgment and realized a considerable surplus. 128. Mutual Life Ins. Co. v. Woods, 121 N. Y. 302, a%. 21 St. Rep. 341, without approving the reasoning. The will construed herein was the same as in Scholle v. Scholle, supra. 129. Greenland v. Waddell, 116 N. Y. 234. 130. Fulton V. Edgar, 19 W. D. 429. 131. Danaher v. Hildebrand, 72 Misc. 240; Emens v. St. John, 79 Hun, 99. Application of Proceeds. 199 I § 283. Termination. — Mere lapse of time does not impair an imperative power of sale.^^^ A will directed the executor to sell immediately, if he deem it best, but if not sold according to the foregoing provisions, then to sell when my daughter reaches thirty-five years of age. Held: A sale ten years after the death of tes- tatrix and before the daughter had reached thirty-five was a good exercise of the power.^'^ In the early case of Eichardson v. Sharpe, 29 Barb. 222, the will directed the trustees to sell within seven years. The court, without discussing the difference be- tween discretionary and imperative powers, held that a sale seven years and three months after testator's death would not make marketable title. Where the power can be exercised only on the con- sent of some individual, it terminates on the death of that person.^^^ The power once exercised is exhausted; nor is it re- vived by the fact that the premises are afterwards con- veyed to a beneficiary of the trust to which the power originally attached.^^" A power vested in trustees terminates with the end of the trust.^^^ If it was not exercised during the life of the trust, it does not affect title.^^' § 284. Application of Proceeds. — The purchaser is not bound to follow the proceeds of a sale,^'^ or to infer that his money when paid over as directed by the ex- 132. Clifford Morrell, 22 A. D. 470, interval of 29 years; Faile V. Crawford, 30 A. D. 536, interval of 42 years. 133. Guggenheimer v. Sullivan, 12 W. D. 541. 134. Kissam v. Dierkes, 49 N. Y. 602; Guliek v. Griswold, 160 N. Y. 399, affg. 14 A. D. 85. See ? 280. 135. Kissam v. Karlen, 28 W. D. 634. 136. Harriot v. Prime, 155 N. Y. 5, afEg. 87 Hun, 95. 137. Eoberts v. Gary, 84 Hun, 328. 138. White v. Kane, 51 Super. 295. 200 Powers Other Than Sale. ecutor or trustee, is not being invested properly .^^' It is expressly provided by statute "" that the purchaser's title shalLnot be invalidated by misapplication of the proceeds."^ This statute is naturally limited to pur- chasers in good faith."^ Where trustees have duly sold and distributed the proceeds among the living beneficiaries, title to the premises is not affected by the birth of another remain- derman; the latter 's recourse is against the proceeds only."^ 9. Powers Other Than Sale. § 285. Power of Lease. — ^A power to lease for a term not exceeding sixty-three years is void.^ Such power may be so vital a part of testator's scheme as to invalidate the whole will.^ § 286. Power of Mortgage. — ^A power of mortgage may be implied from a power to consume the principal of the estate, as where the will leaves the entire estate to the widow for the support of her and my children and at her death to leave the residue to my children as she deems proper.' So where the will devised the residue to E, but on her decease, the remainder there- of, if any, I devise to my children.* 139. Behrman v. Von Heyn, 15 Supp. 604. 140. 1 R. S. 730, § 66; Real Prop. Law, § 108. 141. Wilson V. Lynt, 30 Barb. 124. 142. McPherson v. Smith, 49 Hun, 254; Champlin v. Haight, 10 Paige, 274, rvsd. on other grounds, 7 Hill, 245. 143. Doll V. Pizer, 96 A. D. 194. 1. Salmon v. Stuyvesant, 16 Wend. 321. 2. Root V. Stuyvesant, 18 Wend. 257. ^ 3. Blauvelt v. Gallagher, 22 Misc. 564; Cook v. Sackett, 110 A. D. 322. 4. Leggett v. Firth, 132 N. Y. 7, affg. 53 Hun, 152. The case really decided that the provisions above recited created a power of mortgage, though the opinion rather carelessly refers to it as a power of sale. PowEE OF Devise. 201 A grant of power to sell or mortgage to carry out the provisions of the will does not authorize a mort- gage when all debts and specific legacies have been paid and there is no purpose of the will to be carried out.^ A power of mortgage does not authorize the execu- tors to make a mercantile loan.^ Where the transaction was within the spirit of the power of mortgage, informalities in executing the in- struments do not necessarily render the title derived through foreclosure invalid. A will devised to A for life, remainder to four infant children, B, C, D and E, and provided that the value of B's share on his ma- jority should be paid to him in cash; it appointed A executrix, with power of mortgage. In order to raise money to pay B when he came of age, A entered into certain transactions resulting in a bond to F executed by A individually and a second mortgage to P to se- cure same executed by A as executrix and reciting that the bond was also executed by her as executrix. F foreclosed by action in which A, individually and as executrix, and C, D and E, still infants, were made de- fendants. The complaint set forth the transaction in detail, alleging that the mortgage was executed pursu- ant to the power. It was held that the mortgage was properly executed, that the residuary legatees were barred and that title was not open to doubt.^ § 287. Power of Devise. — A power of devise may be created for herself in an ante-nuptial agreement, by a woman about to marry. It enables her to devise good title by a will executed after her marriage.^ 5. Smith V. Peyrot, 201 N. Y. 210, rvsg. 134 A. D. 954. 6. Boskowitz v. Held, 15 A. D. 306, affd. 153 N. Y. 666, on opin- ion below. 7. Roarty v. McDermott, 146 N. Y. 296, rvsg. 84 Hun, 527. ' 8. Albrecht v. Pell, 11 Hun, 127. 202 Powers Other Than Sale. A devise in trust for the benefit of D, hut D to have the right to " bequeath " the premises, gives D a power of devise which is not defeated by his convey- ance — or at all events such a conclusion is so plausible as to throw serious doubt on title derived through D's grant.' A general, beneficial power of devise, where there is no other person interested, is enlarged by statute '^° to an absolute power of disposition.^^ But this rule does not apply where the donee of the power has no estate, but is merely beneficiary under a trust.^^ The power of devise, reserved by the grantor under a marriage settlement, did not prevent a merger of all the estates under the rule in Shelley's case, when the object of the trust had ceased and the trustee had reconveyed.-^' In Mott V. Ackerman, 92 N. Y. 539, the title under examination came through the following chain: H M devised to his executors in trust for his three daugh- ters, A, B and C, one third to each, to pay the income for life and on her death for the sole benefit of her issue, with power of appointment to such daughter by will upon such trust as she may appoint; A devised to B and C and the survivor; B devised to C for life, re- mainder to W, directing executor on C's death to sell; C, who died last, devised to B for life, remainder to W, directing executor on B's death to sell; as exec- utor of both B and C sues to enforce his contract of sale. It was held that the power created by the will of H M was well executed by the devises of A, B and C; that it was not limited to devises in trust but referred 9. MeDougall v. Dixon, 19 A. D. 420. 10. 1 R. S. 733, 5 84. 11. Hume V. Randall, 141 N. Y. 499, rvsg. 65 Hun, 437, 12. Johnson v. Ross, 160 A. D. 866. 13. McWhorter v. Agnew, 6 Paige, 111. Power of Appointment. 203 only to the passive trust already created by his own "will; and that title was good. NWS devised in trust for life of A with power of appointment by A's will to any descendant of N W S. It was suggested in Salmon v. Stuyvesant, 16 Wend. 321, by Cowen, J., that such power was void as to per- sons not in esse at the death of the testator, but valid as to persons then living; but the rest of the court declined to construe that portion of the will. § 288. Power of Appointment. — A power of appoint- ment by will is a power of devise.^* A power of appointment of the remainder, given to the life tenant, with remainder over in case of non- appointment, does not require the appointee to survive the donee of the power. Upon appointment by the life tenant, the appointee takes a vested remainder.^^ A power of appointment is not extinguished by a decree of sale in an action or proceeding to which the donee of the power is a party. Where C had a life estate with power of appointment to his children or grandchildren, and brought proceedings for sale of the premises, which was duly made by order of chancery, it was held that the purchaser's title was defective be- cause C might still appoint to his grandchildren or per- haps to children born after the decree.^^ Where E hav- ing a power of appointment is made party to a parti- tion suit, answers consenting to a sale and again con- sents in writing to a decree ordering a sale, her power of appointment is nevertheless a defect in title con- 14. Mott V. Ackerman, 92 N. Y. 539. 15. PhiUips V. Pike, 121 A. D. 753. 16. Baker v. Lorillard, 4 N. Y. 257. Some of the judges declined to express an opinion whether C could appoint to children born after the decree. 204 Trusts. tinning until she actually executes tlie deed to the pur- caser." Where a marriage settlement divided into legal and equitable estates, life estate and remainder, with power of appointment and devise, and all possible estates again vested in the grantor and merged into fee simple under the rule in Shelley 's case, a deed by such grantor conveys good title; it is not necessary to decide whether such deed is an exercise of the power, or whether the power also merged.^^ § 289. Power of Conveyance, — A deed to B in trust to pay the income to A for life, remainder to A 's heirs, with power in B's discretion to sell and from time to time apply such portion of the proceeds as he deems proper to the use of A, vests in B a power to convey to A and extinguish the trust." 10. Trusts. § 290. Creation. — A trust is ordinarily created by will. If within the various statutory limits, it is bind- ing upon both trustee and cestui, and cannot be dis- regarded.^ It may of course also be created by deed.^ No trust attaches to the title of premises conveyed to a religious corporation by deed purporting to convey in fee simple.^ Where several persons purchase property on joint account taking title in an individual, the trust attaches simultaneously with the conveyance, so as to defeat dower in the grantee 's wife. The fact that no written 17. Jackson v. Edwards, 22 Wend. 498, afifg. 7 Paige, 386. 18. McWhprter v. Agnew, 6 Paige, 111. 19. Voorhies v. Voorhies, 66 Misc. 78. 1. Priessenger v. Sharp, 59 Super. 315. 2. Roberts v. Gary, 84 Hun, 328. 3. Meitter of First Presbyterian Soc, 106 N. Y. 251. Undefined. 205 trust agreement was executed until later is immate- rial.^ But where after the existence of such an agree- ment one of the group purchases premises with his own funds and voluntarily applies it to the purposes of the trust, such application is on a par with a voluntary conveyance and is subject to the dower rights of the owner's wife." The trust deed of an infant is voidable." An instrument executed by A and B, declaring that the record owner D of the premises holds in trust for them, gives A and B no rights in the premises.'' The record owner L executed an instrument declar- ing that he held the premises for the benefit of W, agreeing to let W collect rents and to convey as W might designate. It was held that this instrument created no trust and vested no estate in W.* § 291. Precatory. — A mere request by testator cre- ates no trust, as where A K devised to his wife S hav- ing full confidence that she will make suitable provi- sion for our son H, and requesting her not only to edu- cate and maintain him, but to establish him in business out of the estate devised to her.^ So of a devise to S in fee, adding that it is my wish and request that she give said property by will to my chidren share and share alike.^" § 292. XJudefiued. — Where the search shows a reg- ular chain of title to M " as trustee for A" and out of 4. Coster v. Clarke, 3 Edw. 428. 5. Same. 6. Mcllvaine v. Kadel, 3 Robt. 429. 7. Haven v. Daly, 41 Super. 348. 8. Falvey v. Bridges, 15 Supp. 878, affd. 133 N. Y. 663, without opinion. 9. Salomon v. Lawrence, 52 Super. 154. 10. Street v. Gordon, 41 A. D. 439. 206 Teusts. M as such trustee by deed duly executed, and no de- tails of the trust are disclosed, it will be presumed valid, and the conveyance within M's authority .^^ § 293. Void. — Secret. — A secret trust is void.^^ § 294. Uncertain. — Where the cestuis are uncertain the trust is void. So held where the trust was in part for T B J for life and on his death for his wife and is- sue, and in part for J C J for life and on his death half for W and half for A, B and C, and in case of the death of any of them before J J, the share of decedent to go to his issue or in absence thereof to the heirs of T B J. The court found the cestuis after each life estate con- tingent and the trust void.^^ § 295. Perpetuities. — A trust suspending the power of alienation for more than two lives in being is void ab initio.^* But where the provision beyond the second life is separable and may be deleted without destroying the general scheme for disposing of the property, the trust will be sustained for the first two lives. ^^ § 296. Not Within the Statute. — A trust to collect the rents and pay off a mortgage was held invalid at special term, but the court of appeals, affirming the judgment on other grounds, declined to pass upon the question.^^ Whether a devise to executors in trust to apply the income to the payment of debts and legacies 11. People V. Open Board of Brokers' Co., '49 Hun, 349, afifd. 112 N. Y. 670, on opinion below. And see Kanenbley v. Volken- burg, 70 A. D. 97. 12. Torster v. Winfield, 142 N. Y. 327. 13. Jarvis v. Babeock, 5 Barb. 139. 14. Same; Amory v. Lord, 9 N. Y. 403. See also U 317-320. 15. Mygatt v. Maslen, 141 A. D. 468. 16. Matter of Koss, 177 N. Y. 371. Accumulation. 207 "was valid was considered but not decided in Hoepfner V. Sevestre, 10 Supp. 51. § 297. Passive. — A "dry" or "passive" trust under "whicli no active duties are imposed upon the trustee vests no title in such trustee.^^ The intended cestui takes title as immediate grantee or devisee.^* The fol- lowing are examples of such ineffectual attempts to create trusts : Devise to executors in trust to permit W to receive the rents and profits for life ; ^^ devise in trust for R to be used especially for her interest and in case she die without issue then to be divided among my chil- dren.^" Where the deed showed no active duties and the in- tended cestui took possession and collected rents, the trust was pronounced passive. ^^ A devise to R " for his use, benefit and behoof in trust for his children " was held to create no trust; but where title vested the court declined to decide. ^^ § 298. Accumulation. — A devise in trust to pay cer- tain legacies as soon as the rents and income will per- mit, on the death of S and J, or if they shall then be alive, eight years after the deaths of testator, was held void as to the accumulation directed.^^ 17. Salmon v. Stuyvesant, 16 Wend. 321. 18. Ennis v. Brown, 1 A. D. 22; Mott v. Ackerman, 92 N. Y. 539. 19. Verdin v. Slocum, 71 N. Y. 345, rvsg. 9 Hun, 150. 20. Ramsay v. De Eemer, 65 Hun, 212. 21. Seidelbach v. Knaggs, 44 A. D. 169, affg. 27 Misc. 110, aflfd. 167 N. Y. 585, without opinion ; Ennis v. Brown, 1 A. D. 22. These cases must be carefully distinguished from the rather common occurrence of a conveyance to M as trustee for A, where no facts whatever are disclosed in regard to the trust, and the record title is regular. As pointed out above, such paper trust is presumed valid. People v. Open Board, 49 Hun, 349. 22. Marks v. Halligan, 61 A. D. 179. 23. Graham v. Ackerly, 120 A. D. 430. 208 Trusts. § 299. Religious and Charitable Purposes. — A con- veyance to trustees for the use of the ministers and people of the Low Dutch Church then existing or there- after to be established in New York was at common law unquestionably a valid conveyance to a charitable or pious use. Gestuis incorporated in 1696, five years after such conveyance, were held to have acquired equitable title, to which by statute and by presumptive convey- ance from the trustees the legal title was united.^* A devise in trust for a known unincorporated chari- table institution was pronounced valid by the court of appeals in Matter of New York Protestant Episcopal Public School, 31 N. Y. 574, but the authority of this decision was denied two years later. ^^ The question does not again appear to have arisen in later cases except in the single instance of Moore v. Morton, 39 A. D. 639, where without opinion a devise by will executed before 1872, to the treasurer of R P Church, an unincorporated ecclesiastical body, in trust for same was held invalid. The existence of an R P Church incorporated in Pennsylvania after the date of the will but before the death of testator was also held not to have validated title.^^ § 300. Trustee. — The failure to appoint a trustee does not affect the trust. The supreme court will act as trustee and execute the trust; and its interlocutory judgment in partition, providing for the beneficiaries, may be an appropriate exercise of its duty as such trus- tee.^' The beneficiaries alone cannot convey.^^ 24. Reformed Church v. Mott, 7 Paige, 77. 25. Bascom v. Albertson, 34 N. Y, 574 (not a marketability ease). 26. The law has also been affected by various statutes, which indicate a general legislative policy to return .toward the common law. 27. Kirk v. Kirk, 137 N. Y. 510. 28. McDougall v. Dixon, 19 A. D. 420. Power in Trust. 209 § 301. Power in Trust.— A devise in trust to apply the income to the payment of debts and legacies, re- mainder to four children, was held good either as a trust or as a power in trust, it is not decided which.^^ A con- veyance to R in trust for A for life and on her death to convey to her surviving children, was held to vest in E a valid power in trust to convey to the children on A's death.^o The will of Nicholas W. Stuyvesant devised to ex- ecutors in trust to divide into nine unequal shares and convey one of such shares to B for life with power to lease for a life or lives or term of years, and to ap- point by will to any descendant of testator, remainder to testator's grandchildren. A parcel conveyed to B pursuant to the will was sold to defendant who de- clined to take title. In an action for specific perform- ance the will was reviewed by the court of errors in an opinion holding that the power of appointment was valid as to descendants in esse at the time of testator's death, but void as to others; that the power of lease was valid for lives, but void for years ; and that the will was valid except as to the specific provisions found void.^^ The trustee may convey only in accordance with the power. He cannot exchange property under a power of sale.^^ ' 29. Hoepfner v. Sevestre, 10 Supp. 51. 30. Graham v. Fountain, 2 Supp. 598. The same result, i. e. that title was unmarketable, would be reached in this case by hold- ing that the children took a remainder. In Roberts v. Gary, 84 Hun. 328, a similar conveyance was disregarded. 31. Salmon v. Stuyvesant, 16 Wend. 321. Several judges did not concur in the opinion. To the effect that a power may be sus- tained although the will is partly void, see also Graham v. Ackerly, 120 A. D. 430. 32. Woerz v. Eademacher, 120 N. Y. 62. 210 Trusts. § 302. Termination. — When tlie purpose of tlie trust terminates, the trustee's estate, it has been held, ceases. This broad rule was laid down in Albrecht v. Pell, 11 Hun, 127, where the facts were simply that cestui was given a power of devise and exercised same. Similar language appears in McWhorter v. Agnew, 6 Paige, 111, which also arose out of a marriage settlement. There the founder was also sole beneficiary and on her hus- band 's death, the trustee reconveyed. It was held that the legal and equitable estates merged upon such re- conveyance, and the title vested as a fee simple, free from a general power of appointnient created by the trust deed. The trust may be made terminable upon the e;xecu- tion of a certain instruments^ In such event it is im- portant to show that the instrument has actually been executed.^* No deed from trustee to remainderman is necessary upon the termination of the trust. If the trustee with power of sale actually executes such deed, it will not be tested by his authority as donee of such power, but will be disregarded.^^ Where the remainderman conveyed to the sole bene- ficiary, and the latter together with the trustee conveyed to herself, it was held that she had under the Laws of 1893, chap. 452, extinguished the trust. ^^ An infant's trust deed being voidable was avoided by an instrument of disaffirmance executed by her up- on reaching her majority; the fact that she was then a married woman was immaterial.*'' 33. Viele v. Keeler, 129 N. Y. 190. 34. Schreyer v. Arendt, 83 A. D. 335. 35. Roberts v. Gary, 84 Hun, 328. 36. Phillips V. Pike, 121 A. D. 753. The Act of 1893 was re- pealed without substitute in 1903. 37. McIIvaine v. Kadel, 3 Robt. 429. Vested Remainders. 211 Violation of the trust does not revest either legal or equitable title in the founder or his heirs.^* The united conveyance of trustee and beneficiary is not adequate to terminate a valid trust.^' Nor can they indirectly accomplish that result by one bringing a parti- tion suit and the other defaulting therein.^" 11. Remainders. § 303. Vested. — A vested remainder is favored in law. A provision in the will for remainder over in case of a death is usually construed as intending a death in the lifetime of testator, with the result that the remain- der vests in the devisee who survives the testator.^ This rule has been applied to a variety of language some of which in ordinary parlance would unmistakably in- dicate the life of the life tenant or first remainderman instead of the testator as measure of the event. A de- vise to B and C for life and from and after their de- cease to D and E, to be divided between them and their heirs per stirpes, gives D and E vested remainders.^ So of a devise to A for life and from and after her decease my property to be divided according to the stat- utes of descent and distribution — the sole heir at testa- tor's death taking a vested remainder.' So Of a devise to widow for life and thereafter to my children B, and D share and share alike, the issue of any child to take 38. Reformed P. D. Church v. Mott, 7 Paige, 77. 39. Priessenger v. Sharp, 59 Super. 315; Doyle v. Mulvihill, 16 "W. D. 361. 40. Harris v. Larkins, 22 Hun, 488. 1. Hopkins v. Hopkins, 1 Hun, 352; Benson v. Corbin, 145 N. Y. 351, affg. 78 Hun, 202. 2. Nelson v. Russell, 135 N. Y. 137, rvsg. 61 Hun, 528. 3. Hersee v. Simpson, 154 N. Y. 496, affg. 20 A. D. 100. Wein- stein V. Weber, 178 N. Y. 94, approving 58 A. D. 112, construes similar language. 212 Remainders. parent's share.* A devise to widow for life and on Tier death to my children or their legal representatives vests the remainder in the children who survive testator.^ In Black V. Williams, 51 Hun, 280, the will — devising to M for life, and after her death my entire property shall be given to L without reserve for him to dispose of as he wishes ; in case of L 's death without any legi- timate family, my property shall go to my family — was construed to vest the remainder in L. Perhaps the extreme limit is reached in Eunyon v. Grubb, 119 A. D. 17, affd. 192 N. Y. 586, without opinion, where the words simply reek with futurity. The will gave all C R's property to his wife M for her support during life or widowhood, and on her death or remarriage to be divided equally among my surviving children, and if any shall have died his issue shall take parent's share. The rule applicable to this class of cases is expressed in Swan v. Packer, 161 A. D. 511, as follows: An un- restricted devise followed by an alternative devise in case of death without issue means such death in testa- tor's lifetime and gives a vested remainder. A devise to R for life and from and immediately after her decease to B for life, remainder to C, vests the re- mainder in C.® A devise to J so long as she shall remain unmarried, but on her decease or remarriage to H or his heirs, vests the remainder in H.'' The will devised in trust for E for life, with remain- der to such person as E should appoint by deed or will, remainder over in case of non-appointment. E ap- 4. Morgan v. Collins, 152 A. D. 158. 5. Davidson v. Jones, 112 A. D. 254; Eyclesheimer v. Hunter, 162 A. D. 643. 6. Aekerman v. Gorton, 67 N. Y. 63, rvsg. 6 Hun, 301. , 7. Miller v. Caragher, 35 Hun, 485. The ground of objection is not apparent. See also Goerlitz v. Malawista, 56 Hun, 120. Contingent. 213 pointed C by deed, and it was held that took a vested remainder.^ § 304. Contingent. — A contingent remainder is an estate in expectancy, descendible, devisable and alien- able,^ and constitutes property which cannot be taken by law for private purposes.^" While the contingency remains undetermined, the contingent remaindermen have an estate which cannot be ignored, even though it is highly improbable that same will ever vest in pos- session.^^ The contingent estate may be barred as against persons not in esse by making parties in partition all members of the class. ^^ Where it is apparent that the event upon which the vesting of the remainder depends must happen after testator's death, the remainder is contingent. The re- marriage of his wife is such an event.^^ So where the gift is to a class to be determined at the date of dis- tribution." It has been held that where the shares of 8. Phillips V. Pike, 121 A. D. 753. 9. Freeborn v. Wagner, 4 Keyes, 27. 10. Brevoort v. Grace, 53 N. Y. 245. 11. Wilson V. White, 109 N. Y. 59. 12. Brevoort v. Brevoort, 70 N. Y. 136. 13. Goerlitz v. Malawista, 56 Hun, 120, affd. 130 N. Y. 688, without opinion. 14. Matter of Baer, 147 N. Y. 348, affg. Nathan v. Hendricks, 87 Hun, 483 ; Ranhof er v. A. C. & H. M. Hall Realty Co., 143 A. D. 237; Hebberd v. Lese, 107 A. D. 425. In Matter of Baer the will devised to executors in tnist for E and on her death to con- vey to her issue; in case of her death without issue, then for M for life and on her death to convey the remainder to the children and lawful heirs of my brother H. The court referred to the creation of the trust estate and the future phraseology as negativ- ing the construction that the reference was to a death in testator's lifetime. In Bernstein v. Solomon, 42 A. D. 621, the will devised to T for life, remainder to her children. The purchaser objected that a deed by T and conveyances by her infant children under order of court would not convey the interest which such child 214 Remaindees. the remaindermen are subject to be divested in favor of their issue by death before the life tenant, the in- terest of such issue is a contingent remainder which is not disposed of by the deed of life tenant and re- maindermen.^^ Where. the will devises a life estate, with remainder to the issue of the life tenant, the in- terest which issue would take if born is described as a contingent remainder; it is an estate which must in judicial proceedings be provided for.^^ A devise in trust for the life of A with directions to the trustee on A 's death to convey to my children per stirpes was the controlling feature in Lese v. Miller, 71 A. D. 195, affg. 33 Misc. 306, creating contingent remainders. The will of Joseph Rosenfeld devised in trust for widow M and A, B and C, three of testator's five chil- dren ; should M remarry her interest shall cease, except as to the net income from one third of the real estate, the remainder thereof to be applied to the support of my said children while minors ; on her death my entire estate shall vest in my said children absolutely, and should any of them die, the surviving issue shall in- herit their parent's share. M has remarried and C has an infant child D. The purchaser on a judicial sale declined to take title because I) was not made party to the action; and it was held that whether D had a con- tingent remainder, requiring that he be joined as de- fendant, was a matter of so much doubt as to make title unmarketable." would acquire by the death of a brother or sister in T's lifetime. The court found the title unmarketable, citing Matter of Baer, 147 N. Y. 348, supra, as though there were weight in this objection ; but it seems as clear a case of vested remainder as could be im- agined. There was another objection to the title, and no opinion was written. See also Huber v. Case, infra. 15. Huber v. Case, 93 A. D. 479. 16. Barnes v. Luther, 77 Hun, 234. 17. N. Y. Security & Trust Co. v. Schoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below. Contingent. 215 A devise to A for life, remainder to B and C, but if B or C should die before A, then his share shall go to his issue, clearly creates a contingent remainder which prevents conveyance of absolute title in fee sim- ple in A's lifetime.^^ The early case of Hayes v. Kershow, 1 Sand. Ch. 258, decided that vendor's title, derived as follows, was not marketable : T S and J S, owners of the premi- ses, executed a deed to H A and J D, habendum to the use of H A for life and after her death to M and N, her children for life and life of the survivor, then to the grantors, their heirs and assigns; on the same day T S and J S also executed an instrument covenanting to convey the premises to the issue of M and N; by vari- ous instruments the above named parties undertook to convey title to M, who has died leaving issue, and whose executor has contracted to sell. It was held that the two instruments executed by T S and J S operated as a covenant to stand seized with a resulting use which vested in the issue of M and N; that the con- tingent interest of such issue may be supported in equity as a trust and is good as a contingent remain- der. The will of Jesse Buel devised to his son C on con- dition that such gift is made to him and his lineal de- scendants if he should have any in fee simple absolute, but if he should die without any, then I devise prem- ises to the children of J and W. At the time of C's death without issue, J and W each had children, and another child was born to J afterwards. It was held that the children of J and W took a valid contingent remainder, which vested on C 's death in those then liv- ing to the exclusion of children born later." 18. Norton v. Duflfy, 15 W. D. 529. 19. Buel V. Southwick, 70 N. Y. 581. 216 Eemaindbes. § 305. Executory Devise. — ^An executory devise may be conveyed; when it is conditioned on a fee and the owner of the fee also conveys, the grantee of both es- tates gets good title.^° The interest of the executory devisee, if left by judicial proceedings outstanding, renders title unmarketable.^^ The remainderman who has merely an expectant estate, not vested, takes an interest not in the real estate, but in the trust fund of the proceeds; when therefore the executors sold as di- rected by the will, they could convey good title ; the ex- ecutory devisee, if aggrieved by fraudulent purchase, has his remedy only against the fund and the ex- ecutors personally.^^ The will of Henry B. Webel was construed by a ma- jority of the court as giving remainder to issue of W and executory devise to A, B and 0. It devised the real estate in trust for the maintenance of W till of age, to pay him the entire income from that date until he should be twenty-five years old and then to convey the whole estate to him, to be held by him as follows: In case he die before me or without issue, then I give all my property to A, B and C; and in case he die before twenty-five without issue, my executor shall convey to A, B and C.^^ The will of Myndert Veeder devised to widow for life, remainder to six sons in fee, providing that in case one or more of my sons die without lawful issue of his or their bodies, the survivor or survivors of my said sons 20. McLoughlin v. Maher, 17 Hun, 215; Eamsay v. DeRemer, 65 Hun, 212. 21. Baker v. Lorillard, 4 N. Y. 257. 22. Weintraub v. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246. It is not apparent why the remedy of the executory devisee should be thus limited. If when his estate vests the, premises are still in the hands of the fraudulent vendee or a purchaser with notice, why should he not be permitted to set aside the sale? 23. Webel v. Kelly, 111 A. D. 521. Subject to be Divested. 217 shall liave the property. The chancellor reluctantly- construed the second limitation over as an executory devise, remarking that if a limitation over can be sup- ported as a contingent remainder, it shall never be con- strued as an executory devise.^^ Since the abolition by statute of executory devises, the subject is of diminish- ing importance.^" The devise of a remainder to the governor of the state for the time being in fee simple in trust for certain chari- table purposes was held to vest in the then governor a fee simple subject to be defeated by the expiration of his term, upon which event by a valid executory devise it would vest in his successor.^^ § 306. Subject to be Divested.— The phrase " sub- ject to be divested " propel-ly refers to some specific pro- vision in the will in the nature of a. condition subse- quent — as, if E die before he shall become 21 years of age and become married and have children, I devise said premises to A. In such case if the condition ma- terializes the executory devisee takes title.^' This doctrine is by no means benign, and deserves nO' more encouragement from the courts than is given to the doctrine of condition subsequent. Yet it has ac- quired a certain vogue, and if not more carefully dis- cussed and adjudicated, may cause great mischief to titles. The principal reason for the increasing men- tion of the subject is its confusion with two other mat- ters. In a sense a vested remainder is always subject to be taken away from the remainderman by his death 24. Vedder v. Evertson, 3 Paige, 281. 25. Eeal Prop.- Law, §§ 36 et seq. 26. Matter of New York Protestant Episcopal Public School, 31 N. Y. 574. 27. Roome v. Phillips, 24 N. Y. 463; Burrows v. Stumm, 22 How. Pr. 463. 21-8 Rbmaindees. before the life tenant or by the exercise of a power of sale;^* but to describe that as a divestment of title is a return to that metaphysical mode of thought which centuries ago introduced such wonderful confusion into the law of titles. On the other hand it is obvious that no remainder can be divested unless it has prev- iously vested; consequently contingent remainders can- not possibly come within the doctrine. In several of the cases the remainders were really contingent; so that while the reasoning was unsound, the result of an unmarketable title was correct.^^ ■ While the contingency is still possible the owners of the estates in possession cannot give good title;*" but after it has become impossible, the title in posses- sion is marketable.^^ The common attempt of testators to provide against the death of their immediate donees is sometimes inter- ' preted as vesting the remainder in the remote donees, sometimes as creating contingent remainders, as shown in the preceding paragraphs ; it may also be con- strued as giving an estate subject to be divested. A devise to S for life and on her death I devise same unto my children, the children of any deceased child to take the share their parent would have taken if living, was so construed.^^ A devise to R and in case she die with- out issue, to be divided among my living children or 28. Hilton v. Sowenfeld, 53 Misc. 152; Nodine v. Greenfield, 7 Paige, 544; Guilbert v. Guilbert, 68 Misc. 405; Hebberd v. Lese, 107 A. D. 425. See also the romantic theory of Thall v. Dreyfus, 84 A. D. 569. 29. Ranhofer v. A. C. & H. M. Hall Realty Co., 143 A. D. 237; Weinstein v. Kratenstein, 150 A. D. 789. 30. McPherson v. Smith, 49 Hun, 254. 31. Roberts v. Gary, 84 Hun, 328. 32. Camp v. Cronkright, 59 Hun, 488. And see Matter of Mills, 28 A. D. 258, a%. 22 Misc. 629 (minority opinion) ; Schwartz v. Rehfuss, 129 A. D. 630, affd. 198 N. Y. 585, without opinion. Estate Tail. 219 their heirs, was held to vest the fee in R subject to be defeated by her death without issue.^^ § 307. Subject to Open. — Where the remainder is devised to a class it ordinarily vests in those of the class living at testator's death and opens from time to time to let in others as they are born. This is the com- mon case of a devise to A for life, remainder to his children.'^ Where none of the class are living at tes- tator's death, the first born takes the entire remainder; but it is still subject to open on the birth of others of the class.^^ On the death of the life tenant the remainder ripens into a fee and there is no further opening.^^ Until that time a conveyance by life tenant and remainderman does not pass marketable title." § 308. Estate Tail.— A devise to H and " his lawful issue him surviving" means "heirs of the body," and under the statute abolishing estates tail vests the fee in H.^^ It is still permissible to limit a remainder upon a de- vise to A and his issue in the event of A's dying with- out issue.'^ There must, however, be some one to take such remainder. Where the grant was by father to his only son and his lawful issue with limitation in case 33. Ramsay v. DeRemer, 65 Hun, 212. 34. Nodine v. Greenfield, 7 Paige, 544; Campbell v. Stokes, 142 N. Y. 23, affg. 66 Hun, 381. 35. Hayes v. Kershow, 1 Sand. Ch. 258; Baker v. Lorillard, 4 N. Y. 257. 36. Buel V. Southwick, 70 N. Y. 581. 37. Taggart v. Murray, 53 N. Y. 233; Marks v. Halligan, 61 A. D. 179. 38. Hilliker v. Bast, 64 A. D. 552. 39. 1 R. S. 722, J 4, now Real Prop. Law, § 32; Buel v. South- wick, 70 N. Y. 581 ; Ramsay v. DeRemer, 65 Hun, 212. 220 Kemaindees. of death without issue to the grantor, his heirs and as- signs, the limitation is void and the grantee takes fee simple absolute.^" . § 309. Issue and Heirs. — The prima facie meaning of "issue" is -"heirs of the body."^^ But it more often is given the narrower meaning of "children" in order to carry out testator 's supposed intent.^^ " Heirs " may also be construed as " issue," espec- ially when the phrase is "die without heirs" or words to that effect.^^* § 310. Death without Issue. — In the old cases a pro- vision for donee's death without issue was in the ab- sence of qualifying words interpreted as meaning in- definite failure of issue." But as that construction avoided the remainder, rather slight variations in lang- uage were taken advantage of to refer the failure of issue to the definite date of the ancestor's death.^^ Since the statutory rule of construction enforcing the latter interpretation,** the opinions have chiefly been concerned with discussing whether the limitation over ^s 40. Wood V. Taylor, 9 Misc. 640, affd. 11 Misc. 713, on opinion below. 41. Hilliker v. Bast, 64 A. D. 552. 42. Chwatal v. Schreiner, 148 N. Y. 683, aflfg. 77 Hun, 611, affg. 3 Misc. 192; Daly v. Greenberg, 69 Hun, 228. The logic of the latter case is that because the same phrase is repeated four times its meaning is clearly different from the natural interpretation; but that is probably not to be taken seriously as a rule of construc- tion. 43. Taggart v. Murray, 53 N. Y. 233; Wood v. Taylor, 9 Misc. 640, affd. 11 Misc. 713, on opinion below. 44. Miller v. Macomb, 26 Wend. 229; Baker v. Lorillard, 4 N. Y. 257; Ferris v. Gibson, 4 Edw. 707. 45. Vedder v. Evertson, 3 Paige, 281. 46. 1 E. S. 722, 4 22; Real Prop. Law, 5 48. After-Born. 221 created a vested remainder,*'' a contingent remainder,*^ or an executory devise;*' and whether the immediate devisee took a fee simple absolute ^^ or a base fee sub- ject to be divested.^^ The reconcilement of these ap- parently divergent conclusions depends upon highly technical variations of the substantive law of real property and nice interpretation of shades of language, and does not properly come within the doctrine of mar- ketability. Both statutes and decisions tend to sim- plify the old bewildering distinctions — with the single dangerous exception in regard to estates "subject to be divested," referred t6 above. § 311. After-Born. — Where an estate is vested in members of a class subject to open and let in after-born children, those as yet unborn have no vested rights, and when they come into existence they take with ref- erence to laws'^ and conditions then prevailing.^' Whether after-born children could be bound by a judicial decree rendered before their birth was consid- ered an open question in 1850.^* It was soon after- wards set at rest by the case of Mead v. Mitchell, 17 N. Y. 210, which has been followed by a succession of well known cases to the same effect.^^ The court of appeals there held that persons not in esse who by conditional limitation or executory devise might defeat the seizin 47. Benson v. Corbin, 145 N. Y. 351, affg. 78 Hun, 202. 48. Buel V. Southwick, 70 N. Y. 581. 49. MeLoughlin v. Maher, 17 Hun, 215; Webel v. Kelly, 111 A. D. 521. 50. Smith v. HuU^ 97 A. D. 228, aflfd. 184 N. Y. 534, without opinion. 51. Ramsay v. DeRemer, 65 Hun, 212. 52. Leggett v. Hunter, 19 N. Y. 445, aflfg. 25 Barb. 81. 53. Rhodes v. Caswell, 41 A. D. 229; Doll v. Pizer, 96 A. D. 194. 54. Baker v. Lorillard, 4 N. Y. 257. 55. See also Cheesman v. Thome, 1 Edw. 629. 222 Eemainders. were nevertheless virtually represented in partition by the persons having the first estate of inheritance. This was referred to in Brevoort v. Brevoort, 70 N. Y. 136, as a well established rule. In order to bind persons not in esse upon this theory the judgment must provide for them and protect their interests by substituting for the land the fund derived from its sale and preserving same to the extent neces- sary to satisfy such interests as they arise. If it does so, after-born children are bound by a judgment, de- cree or order, not only in partition but in other actions and proceedings;^^ but otherwise not." Where the interest of the unborn persons is merely a bare legal title of record, it is not necessary to make any provision for them in the judgment.^* It is a sufficient provision if the decree directs pay- ment to the trustees named in the will in terms follow- ing the language of the devise.^' But the entire costs should not be paid out of the remainder.^" There is no representation when no members what- ever of the class having an estate of inheritance are made parties, as where the remainder was devised to the issue of A and B and neither A nor B, who are both young women, yet has any issue, and in the ac- 56. Kirk v. Kirk, 137 N. Y. 510; Ehodes v. Caswell, 41 A. D. 229; Myers v. MeCuUagh, 63 A. D. 321; Corbin v. Baker, 167 N. Y. 128, aflg. 56 A. D. 35 ; Janpole v. Lasky, 94 A. D. 353, affd. 184 N. Y. 539, on opinion below. 57. Monarque v. Monarque, 80 N. Y. 320, rvsg. 19 Hun, 332; Smith V. Secor, 157 N. Y. 402, a% 31 A. D. 103. 58. Kent v. Church of St. Michael, 136 N. Y. 10. 59. Janpole v. Lasky, 94 A. D. 353 ; Rockwell v. Decker, 33 Hun, 343, aflg. 5 Civ. Proc. 62. The court in a memorandum opinion remarks, apparently obiter, that an error of practice in the man- ner of protecting the interests of the contingent remaindermen would not in any case affect the validity of the title. 60. 'Toole V. 'Toole, 39 A. D. 302. EuLE IN Shelley^s Case. 223 tion to construe tlae will, upon the decision of which. A and B rely, their unborn issue were not made par- ties.^^ Nor where upon the happening of the contin- gency certain remaindermen take as purchasers under the will.^^ Nor where the action is improperly brought, as an action to construe a will in which there are no trusts.^^ Whether there is representation when all the parties through whom the persons not in esse would normally be represented have already conveyed their interests is at least open to so much doubt as to invalidate the title.«^ § 312. Equitable Conversion. — Where there is equi- table conversion, the remaindermen take no interest in the land; the donee takes and can convey a complete title as though it were personalty.''^ § 313. Rule in Shelley's Case. — A devise of the rents and profits to V for life and on his death a bequest of my said lots to his heirs and assigns forever was held in 1851 to be within the rule in Shelley 's case and to vest the fee in V.^^ The later case of Goetz v. Ballon, 64 Hun, 490, construes the following similar devise as also vesting the fee : I devise the premises to Gr, to be used and enjoyed by her during the term of her natural life and from and immediately after her decease I de- 61. Guernsey v. Van Riper, 126 A. D. 368; Adami v. Gercken, 164 A. D. 472. 62. Smith v. Seeor, 157 N. Y. 402, a%. 31 A. D. 103; Barnes v. Luther, 77 Hun, 234. 63. Monarque v. Monarque, 80 N. Y. 320, rvsg. 19 Hun, 332. 64. Downey v. Seib, 185 N. Y. 427, affig. 102 A. D. 317. 65. Ehodes v. Caswell, 41 A. D. 229. 66. Haverstiek v. Duffenburgh, 2 Edmonds, 463. The opinion does not mention the date of the will nor refer to the statute, 1 R. S. 725, § 28, abolishing this rule. 224 Eemainders. vise same to her heirs and assigns forever. The rea- son given is. that the word "assigns" implies a com- plete power of disposal in the devisee. The following deed of settlement executed in 1818 "Was construed as equitably within the rule in Shelley's case: Grant to trustees for the separate use of grantor, "to convey as she might appoint by writing or will, and in default thereof to her heirs." § 314. Life Estate with Power of Devise. — Under the statute ^* a devise for life with a general beneficial power of devise and with no remainder thereon limited vests a fee. An instance of such a devise is found in Hume V. Eandall, 141 N. Y. 499, rvsg. 65, Hun, 437. § 315. Void. — Where the remainder attempted to be limited is void, the court may find marketable title in "the owner of the preceding estate, which such remain- der is held not to affect. This was the result of a de- vise depending upon indefinite failure of issue in an ■old case.^' In another old case where the same objec- tion avoided the operation of the will, marketable title was held to come through the issue born before the death of the ancestor.'^" § 316. Particular Devises. — A devise to C in fee, but if she should die without issue, to K's surviving issue, gives C a life estate only. When she died without issue after having conveyed, the title vested not in her grantee but in the remaindermen.'^^ 67. McWhorter v. Agnew, 6 Paige, 111. 68. 1 R. S. 733, § 84 (now Real Prop. Law, § 152). 69. Ferris v. Gibson, 4 Edw. 707. 70. Miller v. Macomb, 26 Wend. 229, affg. Maeomb v. Miller, 9 Paige, 262. 71. Simis v. McElroy, 15 Supp. 19. Particular Devises. 225 The will of Pierre K. Francis devised the premises in question to E for life and on her decease to E and V absolutely; the residue of P K F's property to said E and V, the same and all other property given and de- vised to them to be for their sole and separate use, to have and to hold for the period of their respective lives. E and V having contracted after R's death to sell the premises, now bring suit to enforce the con- tract. The court held that they took a remainder in fee.'2 The will of Hugh Kelly in paragraph 3 devised to C in fee, while providing in paragraph 4 that if C should die unmarried and without issue, the estate should go to H K's next of kin. It was held that the will refer- red only to C's death in H K's lifetime, and that C hav- ing survived him, took a fee.'^ The will of Elisha Burrows devised the remainder to E when he shall become 21 years of age and be- come married and has children. It was held that the first " and " should be construed as " or," and that E on coming of age took a vested remainder on condi- tion subsequent.''^ The will of James Ontwater devised half to F, half to E, subject to the provision that F may make testa- mentary disposition of the property, but in case of her death intestate and without issue, then she shall be deemed to have held same in trust for life only and not in fee, in which case I give whatever may remain of same to E; and similarly as to E's share, with remain- der to F. The court of appeals, rejecting the interpre- tation of the general term'^^ that E and F took each one 72. Temple v. Sammis, 97 N. Y. 526, affg. 48 Super. 324. 73. Carroll v. Conley, 9 Supp. 865, affd. 124 N. Y. 643, without opinion. 74. Eoome v. Phillips, 24 N. Y. 463. 75. 49 Barb. 43. 226 Peepetuitt. half in fee, held that each took a life estate with con- tingent remainder in the other's share ; and that as every other contingency except death intestate and without is- sue in the lifetime of such remainderman would vest a fee in the life tenant, the deed of both E and P conveyed marketable title to the entire estate.'* The will of John C. Hart devised to A for life re- mainder "to the children of A then living and to the child or children of A who may be then deceased per stirpes." The court held this remainder unintelligible and void.'' 12. Perpetuity. § 317. Term of Years. — An instrument suspending the power of alienaition for a term of years is void. A will devising to S for life with power to lease for 63 years is an attempt so to suspend the power of aliena- tion; and where the long lease was a material part of the scheme of the will, the will was held void m toto} A devise in trust directing the property to be kept, together for 10 years and then divided is void.^ A power of sale which can be exercised only after one year and not after two years does not suspend the power of alienation. The title is in the devisees, being subject for the designated term to the power; but there is no illegal restraint.^ That the term is attempted to be expressed in rela- tion to a person's age does not validate the restraint 76. Freeborn v. "Wagner, 4 Keyes, 27. 77. Matter of Koss, 177 N. Y. 371. Testator's intent to devise the remainder to A's children per stirpes seems entirely clear, and could be effectuated by inserting the words " of any child " after the words " child or children." The opinion of the court is rather feeble. 1. Boot V. Stuyvesant, 18 Wend. 257; and see Furst v. Bohl, ISa A. D. 627. 2. Rice V. Barrett, 102 N. Y. 161. 3. Buchanan v. Tebbetts, 69 Hun, 81. Lives. 227 if it is actually measured by years. For instance, a trust until E reaches 21 or in case of her death, until such time as she would reach 21 if living.* On the other hand although the term is expressed in years it will normally be construed as measured by a life if the language permits, for it may intend a period limited by such number of years or the earlier death of the beneficiary. For instance, in Farley v. Secor, 167 A. D. 80, a direction to pay income to W for five years was so construed on the ground that no "pay- ment" could be made to W after her death. § 318. Lives. — It not infrequently happens that an attempt to dispose of remainders in a class in gen- eral terms results in suspension of the power of alienation. The following is a typical case: Devise in trust for F for life, remainder in trust for her four children during their minorities respectively, the share of any child dying under age to be apportioned among the shares held in trust for the other children.^ A term may be measured by a person's age, as until my youngest child comes of age," or until my youngest heir reaches 25,'' or even until the youngest surviving child shall have reached 21,^ for it will be considered terminated by his earlier death. Such terms may not be multiplied indefinitely. In the leading case of Greenland v. Waddell, 116 N. Y. 234, a legacy in trust to pay the income to the support, maintenance and education of the child or children of A B until the 4. Hagemeyer v. Saulpaugh, 97 A. D. 535. It is impossible to reconcile the earlier case of Kennedy v. Hull, 15 W. D. 95; but there can be no doubt about the rule as stated in the text. 5. Mygatt y. Maslen, 141 A. D. 468; and see Beams v. Mela, 10 Supp. 429. 6. Eells V. Lynch, 8 Bosw. 465. 7. Guggenheimer v. Sullivan, 12 W. D. 541. 8. Boecher v. Smada Realty Co., 164 A. D. 837. 228 Perpetuity. youngest child shall arrive at the age of 21 was held to suspend the absolute ownership for a period exceeding two lives and therefore to be void. Every instrument creating a complicated series of estates must be analyzed with care. Various titles de- rived through such instruments have been adjudicated in the following cases : A deed of trust to cover the lives of T B J, his wife and his issue was held void.^ A devise in trust to pay annuities to E for life, to T for life, to H for the life of B and the minority of G, residue of income to C for life, and on the death of C, remainder to her children, with the provision that such remainder should be subject to the right of said trustees to receive the income for payment of said annuities, was held to suspend the power of alienation until the death of all the beneficiaries." A devise of income to wife for life, then to children in equal shares for life, then to the surviving husbands and wives of the respective children, remainder to grand- children, was held contingently to suspend the power of alienation for three lives.^^ A devise to C M for life, then in trust for W for life, then to his wife until his children shall arrive at the age of 21, then to be divided amongst his surviving children is valid ; for W's children take a vested interest on his death, and there are then persons in being who can convey the fee.^^ A devise in trust for E for life, remainder to be di- vided into as many shares as she leaves issue per stirpes and to go to the adult children and the issue of deceased children, but the shares of infant surviving children to be held in trust until their majorities, and 9. Jarvis v. Babcock, 5 Barb. 139. 10. Fisher v. Wilcox, 77 Hun, 209. 11. Amory v. Lord, 9 N. Y. 403. 12. Morton v. Morton, 8 Barb. 18. Survivors. 229 the share of any one of them dying under age to be di- vided between and added to the shares of the surviving remaindermen — held valid; the final share is not de- vised in trust.^* A devise to subject to the conditions that the gift is made to him and his lineal descendants, but if he should die leaving none, then I devise same to the chil- dren of J and W, is valid; C took a contingent estate in fee and on his death without issue, the fee vested in the children of J and W.^* § 319. Survivors. — Where a term is measured by the life of the survivor of a group, it is dependent upon as many lives as there are members in the group; nor is that result changed by designating the "youngest survivor." For instance, a devise in trust till all my children, or the youngest survivor, shall have attained the age of 21, where testator leaves two infant children, suspends the power of alienation for two lives, and a further trust for life renders the will void.^^ So of a devise in trust for D and her issue until the death of her last surviving child.^^ But a devise in trust to accumu- late until the youngest child surviving arrives at the age of 21, was held "plainly" to refer to the youngest child surviving testator; and the will was sustained.^'' Similarly in Kelso v. Lorillard, 8 Daly, 300, affd. 85 N. Y. 177, the survivorship was attached to the second life, thereby validating the remainders. The devise was to H for life, remainder to T if he reach 21, other- wise to E and K, and in case either die without issue, 13. Hardenbergh v. McCarthy, 130 A. D. 538. 14. Buel V. Southwick, 70 N. Y. 581. 15. Benedict v. Webb, 98 N. Y. 460. 16. Lewine v. Gerardo, 60 Misc. 261. 17. O'Keeffe v. Westphal, 139 A. D. 79; Boeclier v. Smada Eealty Co., 164 A. D. 837. 230 Peepbtuity. the survivor to take the whole; and it was held as E died before T, K took a marketable fee. A devise to A for life, then to B, and D (sisters) for life, share and share alike, remainder to their respec- tive children, and if either die without issue her share to be divided among the survivors and the children of any deceased sister respectively as before expressed, does not illegally suspend the power of alienation. All remainders vest at the end of two lives, namely, A's (first) and B's, C's or D's for her share respectively (second). ^^ Where there are only two members in the group, the suspension obviously does not exceed two lives.^' § 320. Effect. — An unsuccessful attempt to suspend the power of alienation has no effect upon the will, as an authorization to sell upon the expiration of a 10-year lease where no such lease existed.^" When the power of alienation is by the terms of the instrument effectually suspended beyond the statutory period, the f ufther question arises whether such suspen- sion is an integral part of the scheme of distribution. The general rule is that where it is an essential part of the will, the whole will is avoided. ^ But where the provision beyond the second life may be deleted without destroying the general scheme for disposing of the residue, the rest of the will may be sus- tained. Such exceptions are not uncommon, as appears by the following examples: Trust for F for life, re- 18. Monarque v. Monarque, 80 N. Y. 320. 19. Hayes v. Kershow, 1 Sand. Ch. 258; Mott v. Aekerman, 92 N. Y. 539, affg. Onderdonk v. Aekerman, 62 How. Pr. 318. The difficulty in both these cases was one of construction of the in- struments, rather than of the rules of perpetuities. 20. Furst V. Bohl, 133 A. D. 627. 21. Benedict v. Webb, 98 N. Y. 460; Root v. Stuyvesant, 18 Wend. 257. 'Adverse Possession. 231 mainder in trust for her children during their minori- ties respectively, the share of any child dying under age to be apportioned among the other trusts. ^^ Or among the other children.^^ Devise to H for life, remainder to T if he reach 21, otherwise to E and K, and in case either E or K die without issue the survivor to take the whole and in case both die the share of each to go to her issue. ^^ Devise in trust for D, E, F, G and H until any one of them die, then to divide the property into shares to be held, respectively for the lives of the sur- vivors, but as to D's share, the trust to continue until the death of her last surviving child.^^ A power of sale created separately before any devise may be sustained even though the will as to one share of the property offends the rule against perpetuities.^^ § 321. Personalty. — Inasmuch as a like limitation applies even more strictly to the absolute ownership of personal property, the restriction is not validated by equitable conversion. Where the absolute ownership of land equitably converted into personalty was sus- pended for an indefinite number of lives, the bequest was held void.^' 13. Adverse Possession. § 322. General Rule. — A title depending upon ad- verse possession may become marketable,^ and if sat- isfactory cannot be rejected even by a person contract- 22. Mygatt v. Maslen, 141 A. D. 468. 23. Hardenbergh v. McCarthy, 130 A. D. 538. 24. Kelso V. Lorillard, 8 Daly, 300, affd. 85 N. Y. 177. 25. Lewine v. Gerardo, 60 Misc. 261. 26. M'Cready v. Metropolitan Life Ins. Co., 83 Hun, 526, afifd. 148 N. Y. 761, without opinion. 27. Greenland v. Waddell, 116 N. Y. 234, rvsg. 5 S. E. 835. 1. O'Connor y. Huggins, 113 N. Y. 511; Ottinger v. Strasburger, 33 Hun, 466, affd. 102 N. Y. 692, without opinion; Shire v. Plimp- ton, 50 A. D. 117 (dictum.). 232 Adveesb Possession. ing for "clear record title,"^ or by a purchaser on ju- dicial sale.^ The statement to the contrary in Hartley T. James, 50 N. Y.- 38, is pronounced a dictum in Ottin- ger V. Strasburger, 33 Hun, 466; it certainly is not the law to-day. The courts are not always friendly to such titles, as is frankly declared by the court of appeals upon a rather technical decision in the case of Heller v. Cohen, 154 N. Y. 299; but there has been a distinct relaxation of the te&t proposed in Simis v. McElroy, 160 N. Y. 156, — that proof of title by adverse possession must be so strong as to exclude to a moral certainty any out- standing claim. That case, and Schultz v. Rose, 65 How. Pr. 75, discrediting titles based on thirty-two and fifty- two years' possession respectively, merely because of the absence of evidence as to the status of the possible claimant, may be said to mark the extreme limit of ju- dicial rigor. § 323. Time. — The following periods of undisturbed possession have been held to establish marketable title: Eighty-five years;* Sixty-two years, even as against co- tenants;^ Sixty years, for in all probability it extin- guishes claims even of lunatics, and is therefore enough to sustain a title;® Sixty years, though without color of title, except the negative fact that the premises were not claimed by the heirs of B, the last record owner, when they partitioned all his remaining realty;'' Fifty- five years, notwithstanding a map and early convey- ances indicating a different location of the lot, since the lapse of time is sufficient to raise the presumption of a 2. Koons V. Potter, 105 A. D. 622. 3. Grady v. Ward, 20 Barb. 543. 4. Taub V. Spector, 124 A. D. 158. 5. Pope V. Thrall, 33 Misc. 44. 6. Faile v. Crawford, 30 A. D. 536. 7. Ottinger v. Strasburger, 33 Hun, 466. Entry. 233 lost deed to complete the chain of title and another map;^ Fifty-five years under paper title running back only fifty-six years, but preceded by twenty-five years' possession in the first grantor;^ Fifty years ;^'' Forty- two years, that being sufficient to bar all possible rights of infants, and there being no reason to believe that any claimant is a lunatic ;^^ Thirty-eight years ;^- Thirty-six years from a judicial sale;^^ Thirty years, preceded by fifteen years in a grantor the foundation of whose claim does not appear.^* § 324. Entry. — It must appear that the possession has been "undisturbed," not merely "actual ;" ^^ and that there was an entry in hostility to the true owner.^^ Entry must also be under claim of title. Possession under an escheat act is not satisfactory, because it remains sub- ject to the claims of heirs." Possession beginning under a 35-year tax lease, and remaining in the lessee and his devisees for fifty-five years, has not made marketable title seventeen years later.^^ Collection of rents which 8. Bohm V. Fay, 18 Abb. N. C. 175. 9. Clarke v. Wollpert, 128 A. D. 203. 10. Abrams v. Rhoner, 44 Hun, 507. 11. Wanser v. DeNyse, 125 A. D. 209, affd. 192 N. Y. 537, with- out opinion. 12. Freedman v. Oppenheim, 187 N. Y. 101; N. Y. Steam Co. v. Stern, 46 Hun, 206. 13. O'Connor v. Hugging, 113 N. Y. 511. 14. Grady v. Ward, 20 Barb. 543. 15. Kelly v. Kelly, 72 A. D. 487. 16. Heller v. Cohen, 154 N. Y. 299. 17. Fowler v. Manheimer, 70 A. D. 56, affd. 178 N. Y. 581, with- out opinion. 18. Ruess V. Ewen, 34 A. D. 484, affd. 165 N. Y. 633, on opinion below. If this case be construed as holding that satisfactory pos- session for 37 years is insufficient, merely because of the absence of information in regard to the true owners, it makes that period the longest ever held inadequate by the upper courts. 234 Adverse Possession. are divided with others is insufficient evidence of claim of title ;^' as are forty-eight years' possession of a plot without color of title except a deed covering only a por- tion of the premises;^" and payment of taxes and assess- ments without enclosure or exclusive occupation.^^ A claimant entering under an instrument executed by the owner as follows: "I am about to travel and hereby promise in case I should not return in four to ten years, B shall be the owner of my lot" — was held to take no color of title. The instrument, said the court in Meighan v. Eohe, 166 A. D. 175, was not deed, will or contract, and B's possession was not adverse. But possession under a deed purporting to convey the fee was held sufficient in Freedman v. Oppenheim, 187 N. Y. 101, and the suggestion in 80 A. D. 487, on the first trial of that case, that further evidence must be presented to negative the possibility of holding under some other claim, is not approved. Where the original owner B continued in possession after executing with his wife a deed of adjoining prem- ises the description in which included a gore wholly covered by B's building and there is no record evidence to contradict a possible license from the grantee, B's holding is not so clearly adverse as to make the title to the gore marketable after twenty years. ^^ § 325. Claimants. — It is important to supply some information in regard to possible claimants. In the ab- sence of all information, undisturbed possession of over twenty years of a city lot, fenced and built on, is in- 19. McCabe v. Kenny, 52 Hun, 514. 20. Gorman v. Gorman, 40 A. D. 225, affd. 159 N. Y. 571, on opin- ion below. 21. McFarlane v. Kerr, 10 Bosw. 249. 22. Timmermann v. Cohn, 204 N. Y. 614, rvsg. 146 A. D. 924, and 70 Misc. 327. ) Claimants. 235 sufficient f as is twenty-seven years' possession f* thirty years, where the owner of a neighboring lot with a sim- ilar title has been dispossessed f^ and even thirty years without any suspicious circumstances.^'' Twenty-five years' occupation of a house built so as to slant across the line two inches at each end is in- sufiftcient to establish title, where no information is fur- nished in regard to the adjoining owner except that his wall is contiguous, also slanting across the line, and that title is now in infants.^^ Nor does twenty-nine years' use of a wall standing on the adjoining lot, for the support of vendor's beams, establish an easement, where it is not shown when and by whom the two houses were built and who might dis- pute the claim.^^ As such a title depends on a presumption grounded merely on the lapse of time, the court ought not to pre- sume unless it believes, on circumstances strong enough to induce belief, that the fact is actually so. Affidavits leading the court to believe that M, who owned in 1856, died before 1876 leaving alien heirs, are sufficient in 1880, when not controverted, to cast doubt on a title resting on possession since 1856 ; for his title may have escheated to the state which would not be barred.^' 23. Thyson v. Thyson, 188 N. Y. 544. 24. Lalor v. looker, 130 A. D. 11. 25. Tuhr v. Cronin, 82 A. D. 210. 26. Carolan v. Yoran, 104 A. D. 488, affd. 186 N. Y. 575, with- out opinion. This is an extreme case, as the only objection was the forni of acknowledgment to a deed recorded over thirty years before the trial. The defendant seems to have overlooked the fact that when this deed ripened into an ancient document, he might have proved a perfect title. 27. Wilhelm v. Federgreen, 2 A. D. 483, affd. 157 N. Y. 713, on opinion below. 28. Spero v. Shultz, 14 A. D. 423, affd. 160 N. Y. 660, without opinion. 29. Shriver v. Shriver, 86 N. Y. 575. The suggestion that some 236 Adverse Possession. But where the claimants are known to have been in- fants, thirty-two years' open and continuous possession makes the title marketable, for the statute cannot be extended by infancy beyond thirty-one years at the ut- most.^" And where the statute began to run against a person under no disability, twenty-three years are suf- ficient, even though the claimant died in the interval, for the statute could not be extended.^^ Twenty-four years' undisturbed possession is suf- ficient to throw on the objector the burden of showing something more substantial than that record title runs back only thirty-six years.^^ And fifty years' well estab- lished possession of a city lot, enclosed and improved, makes the contingency of an attack upon the title so remote as to become a matter of pure speculation and conjecture. Even the absence of information in regard to the heirs of the last record owner does not relieve the vendee of the burden of showing reasonable doubt.'' Where record and possession are satisfactory for fifty- five years, with substantial improvements for twenty years, it is not necessary to account for the heirs of re- mote record owners, who have not claimed.'* § 326. Technical Defects. — Where the defect com- plained of is merely negative or technical, as disappear- ance of papers in a partition suit ; '^ a road shown on an of M's heirs may have been under disability seems unduly cau- tious, for it is not clear how the statute beginning to run against M, could have been extended more than twenty-four years. 30. Hoepfner v. Sevestre, 10 Supp. 51. 31. Lewine v. Gerardo, 60 Misc. 261; Kahn v. Mount, 46 A. D. 84. 32. Eeynolds v. White, 134 A. D. 248. 33. Ruff v. Gerhardt, 73 A. D. 245. 34. Wormser v. Gehri, 55 Misc. 147. 35. Wieland v. Muller, 65 How. Pr. 245. Evidence. 237 unoflficial map;^^ or an error in description,^' twenty- years' adverse possession makes tlie title marketable. So of a right of way abandoned and fenced across more than twenty years.^^ In Kerns v. Davenport, 201 N. Y. 583, the defect was a misdescription, due to a scriv- ener's error, and as there was forty-nine years' ad- verse possession, the title was naturally held' market- able. A person in possession who under claim of fee proves at least the rights of mortgagee gets marketable title certainly in forty-one years, and probably in twenty- A bankrupt may acquire satisfactory title by twenty- six years' possession under color of another title, as against his own assignee, where the entire transaction was in good faith.*" The bed of an old Dutch road, the title to which was owned by New York City, may become marketable in an abutting owner under a strictly adverse possession of only twenty years, where the premises were aban- doned as a highway over sixty years ago, and taxed by the city as the abutter's private property for fifty years.*^ § 327. Evidence. — Hamerschlag v. Duryea, 38 A. D. 130, 31 Misc. 678, 58 A. D. 288, 172 N. Y. 622, is an in- structive case. It was an action by the vendee, under a contract to close in 1897, to recover his deposit. Vendor couuterclaimed for specific performance and proved title which included a deed in 1827 from M to T S and W S ; a deed in 1834 by T S to A purporting to convey the entire premises, and containing covenants of seizin and war- 36. Oakley v. Briggs, 17 Supp. 751. 37. Weil V. Eadley, 31 A. D. 25 (dictum). 38. Clody V. Southard, 57 Mise. 242. 39. Messinger v. Foster, 115 A. D. 689. 40. Ledoux v. Samuels, 116 A. D. 726. 41. Pooler v. Sammet, 130 A. D. 650. 238 ^ Adverse Possession. ranty; and undisturbed enjoyment by A and his success- ors with enclosure and cultivation since 1859. There was no proof as to W S. The appellate division held, revers- ing a judgment for defendant, that there must either be actual notice to the co-tenant W S or such open and pub- lic acts as to make possession so visible, hostile, exclusive and notorious as to raise a presumption of notice; and suggested that in the absence of all information about W S, it was not impossible that his title had vested in per- sons not yet barred. On the second trial defendant proved by maps, hospital records, tax proceedings, etc., that soon after 1834 and at least by 1840, the owner took possession, enclosed the premises, had them exempted from taxation, and had used them continuously ever since. On this evidence specific performance was de- creed and the judgment afllrmed, on the ground that such open and notorious possession of valuable prem- ises for over sixty years was suflficient to establish title, even without proof of the exact date when it became adverse as against the co-tenant. In Eeynolds v. Cleary, 61 Hun, 590, evidence that a blacksmith shop had been on the premises over twenty- six years (but not clearly showing how much ground it covered ) and that the present building was erected eigh- teen years ago was held too weak and indeterminate to establish adverse possession. It was, said the court, "loose and indecisive, leaving the title to this lot sub- ject to a probability at least of future controversy and litigation." Where the record title shows ownership in B in 1866, then jumps to a deed from S to K in 1869, and the evi- dence of fencing, building and occupation runs back only sixteen years, the title is not strong enough to re- quire the direction of a verdict if B should sue, and is not free from reasonable doubt. ^^ 42. Warner v. "Will. 5 Misc. 329. Hostile Claim. 239 Where the eyidence showed a building on the prem- ises erected about thirty-two years ago, but did not show that possession was continuous or that the prem- ises were enclosed or that several of the owners ever took possession, it was held insufficient to establish marketable title.** Fencing for forty years and the fact that a house once stood on the premises are insufficient.** A parcel of woodland, ditched but not fenced on one side, and not shown to have been cultivated or used to any extent whatever, does not become marketable through twenty-four years' undisturbed possession.*^ Digging gravel is too uncertain evidence of possession to support title as against a defective record.*^ § 328. Hostile Claim. — Adverse possession does not run against a remainderman until his right of entry accrues.*' Where possession is interrupted by a party entering under a different but also invalid claim of title, the two periods cannot be tacked.*^ Defendant's grantor H acquire^ title to one fourth by a deed conveying to him in trust for F, J and S for their respective lives, remainder to their issue, re- mainder to H. Before the birth to S of a son A, H had conveyed, executing the deed individually. Defend- ant's possession was not adverse; because H's deed passed only his remainder, and defendant on acquir- 43. Simis v. McElroy, 15 Supp. 19. 44. Belmont Powell Holding Co. v. Serial Building Loan, etc. Inst., 167 A. D. 124. All claimant's other evidence failed because not properly proved. 45. Reynolds v. White, 143 A. D. 595. 46. College P. S. Bank v. Vollmer, 44 A. D. 619, affd. 161 N. Y- 626, without opinion. 47. Fleming v. Burnham, 100 N. Y. 1. 48. Berkowitz v. Brown, 3 Misc. 1. 240 Adverse Possession. ing the other three fourths of the fee became tenant in common with H as trustee, and there was nothing to change the character of the possession as against A, whose birth divested H's remainder.*' There is no adverse possession of a cemetery lot after removal of /the corpse and conveyance.^" Whether there can be any adverse possession against the state's title by. escheat has been pronounced very doubtful.^i A conveyance by J S, who owning the adjoining prem- ises had fenced off and occupied for many years the strip in question, to M S without including such strip is a disclaimer of title. There can be no adverse posses- ion which depends on J S's occupation as part of the period.^^ § 329. Practice. — Where on the closing the vendor relies on his record title and does not claim title by ad- verse possession until the trial of the action for specific performance brought by the vendee, the vendee should at least get his money back unless vendor establishes a reasonably clear possession.^' It has been held that a vendee is justified in question- ing a title based on adverse possession, and should not 49. Merolla v. Lane, 122 A. D. 535. 50. Meiggs V. Hoagland, 68 A. D. 182, approved 185 N. Y. 572, •without opinion. 51. Meighan v. Rohe, 166 A. D. 175. 52. Ridley v. Walter, 153 A. D. 65. 53. Arnow v. Carmel R. Co., 141 A. D. 913. The court is mis- taken in its memorandum opinion in stating that plaintiff could not reap the benefit of a marketable title established by defend- ant; for the latter had on plaintiff's consent given a bond to se- cure any money judgment. The facts included fifty-six years' un- disturbed possession of a 35-acre tract, with payment of taxes and with fencing from time to time of all except a 5-acre parcel of woodland — which would seem ample to establish title. Two judges dissented. Practical Location. 241 "be charged with costs in a judgment requiring him to complete.^* The character and length of possession are questions of fact, of which a court of equity may direct trial by jyj.y 55 fpjjg court does not favor their submission in in- definite form on an agreed statement.^" It may decide on affidavits, even though made on information and be- lief f^ but they should, when the sole ground of decision, he complete and satisfactory.^* Where unsatisfactory the case should be remitted to special term to take further proofs, which may be made by affidavit or in the dis- cretion of that court, on a reference. ^^ 14. Practical Location. § 330. What Constitutes. — Although the doctrine of practical location is benign and tends to the quieting of titles, it is rather strictly and sparingly applied by the courts. It is also made to conform closely to the tech- nical requirements of adverse possession,^ in spite of the fact that it might well be -based upon the theory not of a statute of limitations, but of mutual agreement. It would seem from the point of view of logic that all that was needed to establish practical location was a claim by the owner of premises that the boundary line was in the place indicated by his fence or the walls oi 54. Brown v. Bell, 8 S. R. 894. This is a memorandum case, fol- lowing a general term decision whicli was reversed by the court of appeals. It cannot be considered very weighty authority; and there seems to be no occasion for attempting to lay down a gen- eral rule of costs. 55. Seymour v. DeLaneey, 1 Hop. 436. 56. Kneller v. Lang, 137 N. Y. 589; Kelly v. Kelly, 72 A. D. 487. 57. Shriver v. Shriver, 86 N. Y. 575. 58. Pell V. Pell, 65 A. D. 388. 59. Wanser v. DeNyse, 188 N. Y. 378. 1. Stevenson v. Fox, 40 A. D. 354, affd. 167 N. Y. 599, without opinion. 242 Practical Location. his building, and an acquiescence by his neighbor in such claim evidenced by any overt act or by the lapse of a considerable time without objection ; and such a view would seem in accord with modern public policy. It is, however, well settled that twenty years' acquiescence is necessary to establish a practical location.^ Nor is twenty years' existence of an encroaching wall sufiEi- cient without some further evidence of acquiescence by the adjoining owner.^ Such evidence is supplied by an afildavit from the adjoining owner that he makes no claim.* Fencing by the highway commissioners is a practical location of premises dedicated and used as a public watering place.^ § 331. Discrepancies in Measurement. — The doctrine of practical location is readily applied when the discrep- ancy in measurements is caused by a surplusage or a de- ficieijcy in the block or by an error in conveyancing. The owner of a block bounded east by A St. and west by B St. had same laid off in lots shown on a map as 81' deep on each street; he sold the B St. lots describing them as bounded easterly by the A St. lots, and then sold the A St. lots as bounded westerly by the B St. lots; years later a fence was erected 82' west of A St. and maintained more than thirty years ; this was held to be a practical location taking up a foot of surplusage in the block and giving good title to premises so enclosed.® A 2. Nolan v. Harned, 13 A. D. 155. 3. Miner v. Hilton, 15 A. D. 55 ; WiUielm v. Pedergreen, 2 A. D. 483, affd. 157 N. Y. 713, on opinion below. 4. Harrison v. Piatt, 35 A. D. 533, affd. 158 N. Y. 712, on opinion below. 5. Lingke v. Sammis, 115 A. D. 882, affd. 189 N. Y. 567, without opinion. 6. Wentworth v. Braun, 78 A. D. 634, affg. 38 Misc. 702, affd. 175 N. Y. 515, without opinion. DiSOEEPANCIES IN MEASUREMENT. 243 house built 24' 7" wide on a lot originally of that width, but conveyed as being only 23' 7" wide, carries title to the gore on which it encroaches after fifty years ' occu- pation without claim on the part of any adjoining owner.'^ K, having acquired four lots 98' in width described as 115' west of G St. and 168' east of W St., conveyed to S the westerly lot 25' wide, describing it as 188' west of G St. and 168' east of W St. and adjoining premises of S on the east. K and S each built, fixing their bound- ary line 190' 9" west of G St. and have so occupied for forty years. The moving of this line was due to an error in locating the corner of W St. about two feet too far west and then measuring from same, and the result was to throw K's occupancy that distance west- erly all along his front. It was held that practical lo- cation fixed K's westerly line, enabling him to give good title to the remaining three lots for their full width of 73' measured from a point 117' 3" west of G St.^ H owned two adjoining lots shown on Map A as Lot No. 31, is; 9" wide, and Lot No. 32, 20' wide. He sold Lot No. 32 to G, describing it as bounded westerly by Lot No. 31 on Map A and containing front and rear 18' 9" more or less. Afterwards he sold Lot No. 31 to J, describing it as bounded easterly by Lot No. 32 on Map A and containing 20' front and rear, more or Jess. G built a house 18' 9" wide on his lot, and J en- closed his as 20' wide and built thereon; and parties have coiltinued so to occupy for over twenty years. It was held that the conflict of description in H's deeds had been resolved by practical location, and that J's suc- cessors had good title to a lot 20' wide.^ 7. Taub V. Spector, 124 A. D. 158 ; Katz v. Kaiser, 154 N. Y. 294. 8. Ford V. Schlosser, 13 Misc. 205. 9. Pangburn v. Miles, 10 Abb. N. C. 42^ modified and aifd. 10 Abb. N. C. 51. 244 Practical Location. § 332. Common Ownership. — How far the courts will go in applying the doctrine of practical location to a conveyance by the common owner of several improved lots whose descriptions do not accurately fit the build- ings he seeks to convey may be regarded as an open question. An encroachment of a house and barn two feet on one side and six feet on another was said not to be met by the claim of practical location "depending on complicated and ingenious deductions involving the proper construction of many conveyances. ' '^° Nor was a conveyance 'l)y metes and bounds, referring to the side lines as running through party walls, carried five inches north from the southerly side line and three feet north of the northerly side line in order to con- form to a brick building erected by the common owner on the middle lot of three.^^ On the other hand the court of appeals has held that the owner of a building who mortgages it by a descrip- tion running wholly inside the building lines, gives title to the omitted gores also (one or two inches wide) after thirty years, occupying without adverse claim,^^ And the same ruling was recently applied to a descrip- tion falling short by one foot from the actual building line.^* 10. Rankin v. Clement, 194 N. Y. 535, affg. without opinion a decision of Pound, J. 11. Meadows v. Michel, 135 A. D. 213. The building had been in existence less than fifteen years. 12. Katz V. Kaiser, 154 N. Y. 294, affig. 10 A. D. 137. 13. Taub V. Spector, 124 A. D. 158. CHAPTER VII. ESTATES. A'. Estates as Determined by Status op Owners. 1. Natural Persons and Their Holdings. § 340. Insanity. — The deed of a mentally unsound person, who is wholly, absolutely and completely un- able to understand the transaction, is void; but when the infirmity extends merely to weakness of mind, senil- ity or incompetency, the deed is voidable only. The gist of an action to set the deed aside in the latter case is fraud.^ An act requiring the exercise of a personal choice can be performed neither by a lunatic nor by his com- mittee. Election of dower is such act; and in the ab- sence of statutory authority it cannot be exercised by the state commission in lunacy in behalf of an insane widow devisee.^ Service of process may be made upon lunatics person- ally;^ and they may appear voluntarily on motion of their committees.* It was said in 1892 that there was no way in which the inchoate dower of a lunatic wife could be released.^ But 1. Aldrieh v. Bailey, 132 N. Y. 85, rvsg. 28 S. R. 571; Brokaw v, Duffy, 165 N. Y. 391, affg. 36 A. D. 147. 2. Camardella v. Schwartz, 126 A. D. 334. 3. Prentiss v. Cornell, 31 Hun, 167, affd. 96 N. Y. 665, without opinion. 4. Rogers v. McLean, 34 N. Y. 536, affg. 11 Abb. Pr. 440, rvsg. 31 Barb. 304. 5. Dunn v. Huether, 64 Hun, 18. (245) 246 Natural Persons and Their Holdings. the wife of a lunatic luay for valuable consideration re- lease her inchoate dower to his committee.^ § 341. Infancy. — An infant's deed is not void; it re- quires some positive disaffirmance to avoid if Since the enactment of chapter 375 of the Laws of 1849, a married woman can disaffirm a conveyance executed during her minority.* An infant contracted to purchase real estate, which was conveyed by the owner to F, the infant's father; P began to build thereon, and various mechanics' liens were filed against the premises ; on coming of age the in- fant undertook to ratify the contract of purchase and disaffirm all other acts, and sued for specific perform- ance. It was held that the mechanics' liens constituted a valid encumbrance, preventing defendant from convey- ing marketable title, and plaintiff was awarded as dam- ages the amount of his payment on account.^ The courts have no inherent power to authorize the conveyance of infants' real estate,^" and cannot do so in- directly. The decree in an action brought by an infant to establish the will of H, who devised a remainder to the infant, directed a compromise for |1500. It was held that title in a subsequent owner was not marketable, because such compromise amounted to a conveyance of the infant's real property, and was of doubtful validity.^^ The legislature has power to authorize the sale of in- 6. Doremus v. Doremus, 66 Hun, 111, citing 3 R. S. (7th ed.) 2198, 5 12. 7. Dominick v. Michael,. 4 Sandf. 374. 8. Mcllvaine v. Kadel, 3 Eoht. 429. 9. Donath v. Germania Land Co., 25 Misc. 641. 10. Muller v. Struppman, 6 Abb. N. C. 343. 11. Dixon V. Oczine, 64 Misc. 602, alifd. 134 A. D. 921, on opinion below, affd. 202 N. Y. 554, without opinion. Maeriage. 247 fants' lands. ^2 A sale under statute must conform strictly to all statutory limitations; it may not violate the act ^ providing tHat no real estate shall be sold against the provisions of any will devising same to in- fants.i* Before 1880 an infant could appear voluntarily in a partition suit.^^ A deed conveying the title of infants should be exe- cuted in the name of each of said infants by A B his guardian ad litem}^ § 342. Marriage. — A. Emhand. — Under the old law the husband became seized in the right of his wife of all the real estate which vested in her during coverture. This was a valid interest which enabled the husband to bring an action of partition, joining his infant wife as plain- tiff." A deed from husband to wife was not good at common law. ^* § 343. Curtesy. — When the wife dies seized and leav- ing issue by her surviving husband, such husband takes an estate for life, called a tenancy by curtesy, in the wife's real estate. It cannot be cut off by a decree or sale in a partition suit to which he is not a party .^' § 344. B. Wife. — Under the old law the wife's real es- tate vested for her life in her husband. It could not be 12. Ebling v. Dreyer, 149 N. Y. 460, rvsg. 79 Hun, 319. See also Infant's Proceedings, § 190, and Constitutional Law, §J 33-37. 13. 2 R. S. 203, $ 176. 14. Muller V. Struppman, 6 Abb. N. C. 343. 15. Rogers v. McLean, 34 N. Y. 536. See Service of Process, ^ 89. 16. Hyatt v. Seeley, 11 N. Y. 52. See Formal Requisites of Deeds, § 588. 17. Sears v. Hyer, 1 Paige, 483. 18. Grillenberger v. Spencer, 7 Misc. COl. 19. Bogert v. Bogert, 5 Supp. 893. 248 Natueal Persons and Their Holdings. divested by a decree in a partition suit to which he wa» not a party.^" Nor could she alone convey it. On her death it descended to her heirs; and neither they nor she herself could be bound by her deed nor estopped by any instrument or act of hers.^^ A series of statutes, beginning in 1849 and known as. the Married Women's Acts, has gradually removed all disabilities and differences of tenure and procedure as between men and women, except dower and curtesy.^^ They have enabled a married woman to devise. ^^ For a short period (1860 to 1862) the written consent of the husband was required on the wife's deed; but the only effect of its absence was to preserve an inchoate estate of curtesy for the husband. A separate acknowl- edgment, originally necessary to release the wife's in- choate dower,^* has not been required since 1849.^^ In 1858 a deed from wife to husband was still void.^^ § 345. Dower. — The widow takes as her dower a life- estate in one third of the real estate of which during marriage her husband was seized of an estate of inherit- ance.^' In 1854 the widow of an alien naturalized after marriage did not take dower.^^ The widow is not bound by her husband's contract of sale in which she did not join.^' Where the widow is also executrix and contracts to sell, signing "B, execu- 20. Spring v. Sandford, 7 Paige, 550. 21. Dominick v. Michael, 4 Sandf. 374; Hicks v. Cochran, 4 Edw. 107. 22. Mcllvaine v. Kadel, 3 Robt. 429. 23. Albrecht v. Pell, 11 Hun, 127. 24. Stevens v. Hunt, 15 Barb. 17. 25. Matter of Bellesheim, 17 S. R. 10. 26. Berkowitz v. Brown, 3 Misc. 1. 27. Hartley v. James, 50 N. Y. 38. 28. Greer v. Sankston, 26 How. Pr. 471. 29. Hill V. Ressegieu, 17 Barb. 162. Marriage. 249 trix," without reserving dower, she must release her dower and take its value out of the proceeds.^" The widows of tenants in common who have made a voluntary partition take dower only in the shares in sev- eralty of their respective husbands. ^^ Where one of such tenants died before the partition, but a share was with the consent of his widow nevertheless allotted to him, her dower was limited to such share.'^ The widow is not dowable of land in which her husband had only a vested remainder.^* Nor of land of which, though he had a beneficial interest therein, he was not seized ; nor of a trust estate.^* In regard to partnership property the widow's rights were said in Dixon v. Rice, 16 Hun, 422, to be a matter of doubt. The rule appears to have been laid down correctly at special term in the later case of Dawson v. Parsons, 10 Misc. 428, to the effect thai the widow has no dower in copartnership land, but only an interest in the surplus after payment of creditors. Contrary to the ancient rule that a married woman could not be estopped as against her title to real estate, the widow will be estopped to claim dower after hav- ing received due consideration for a release thereof which has proved to be defective in form.^^ § 346. Inchoate. — The wife's right to prospective dower vests during the life of her husband, constituting an encumbrance upon all real estate of which she is. dowable.^^ Such interest in the wife vests immediately 30. Bostwick v. Beach, 103 N. Y. 414. 31. Totten v. Stuyvesant, 3 Edw. 500. 32. Same. 33. Jackson v. Walters, 86 A. D. 470; Russell v. Wales, 119 A. D. 536. 34. Coster v. Clarke, 3 Edw. 428. 35. Totten v. Stuyvesant, 3 Edw. 500. 36. Jones v. Gardner, 10 Johns. 266; Pomeroy v. Drury, 14 250 Natueal Persons and Theie Holdings. upon the husband's seizin, without record of the deed.'^ It is not, strictly speaking, an "interest" in land, but a mere contingent claim.^' When the husband executes a mortgage for part of the purchase price, the wife's inchoate dower is sub- ordinate to such purchase money mortgage.^' But it is not cut off by foreclosure to which she is not made a party; and still less is the inchoate dower of the wife of the mortgagor's grantee so cut off.*" The purchaser may not object to an inchoate dower right in his own wife; such right would vest immedi- ately upon his taking title and its pre~-existence is an immaterial defect." The wife of a trustee takes no inchoate dower; her interest attaches only to such an estate as will descend to the heir accompanied by the beneficial ownership.*^ This rule has been applied to a dummy's wife, but with the reservation that the title was not marketable on its face.*' § 347. Release. — Where the wife joined the husband in a power of attorney to sell and convey all my prop- erty in N. Y. Co. and give in our names good and suf- ficient deeds therefor, it was sufficient without men- tioning dower to authorize release of inchoate dower in the husband 's real estate.** Barb. 418; Stevens v. Hunt, 15 Barb. 17; Smith v. Riggs, 2 Duer, 622; Watson v. Church, 3 Hun, 80; Knight v. Moloney, 4 Hun, 33; Price v. Palmer, 23 Hun, 504; Wallach v. Riverside Bank, 119 A. D. 238; Holmes v. Holmes, 12 Barb. 137. 37. Kursheedt v. Union Dime Savings Inst., 118 N. Y. 358. 38. Dunn v. Huether, 64 Hun, 18. 39. Parker v. Baker, 12 S. R. 598. 40. Mills V. Van Voorhies, 20 N. Y. 412. 41. Watson v. Church, 3 Hun, 80; Knight v. Moloney, 4 Hun, 33. 42. Coster v. Clarke, 3 Edw. 428; Plant v. Moores, 142 N. Y. 646. 43. Stehlin v. Golding, 15 S. R. 814. 44. Piatt V. rinck, 60 A. D. 312. Marriage. 251 A release of inchoate dower tj the wife of a lunatic to his comniittee for substantial consideration was held valid under 3 R. S. (7th ed.) 2198, § 12.*8 A voluntary release by a wife to her husband ac- complishes nothing, since inchoate dower immediately revests.*** But where such release is made in consider- ation of pecuniary provision pursuant to 1 E. S. 741, § 12, it is effective.*^ Inchoate dower cannot be released to a stranger to the title ;*^ but after such ineffectual release, title may still be cleared by release from the owner's wife di- rectly to the purchaser.*' It cannot be released by the committee of a lunatic wife.^" Before the Married Women's Acts a separate ac- knowledgment by the wife was necessary to give effect to release of inchoate dower when fjhe joined in her husband's deed.^^ § 348. Election. — Election between dower and the provisions of a will is a purely personal right which cannot be exercised by the committee of an insane widow devisee.^^ Unless the devise is in lieu of dower or inconsistent with it, no election is required. J H W devised his entire estate to his wife " after all my debts are paid," and appointed her executrix. She claimed dower, and soon afterwards settled her accounts as executrix. A deed from her five years later was held to convey mar- ketable title through the devise.^^ 45. Doremus v. Doremus, 66 Hun, 111. 46. Wightman v. Schleifer, 18 Supp. 551. 47. Dworsky v. Arndtstein, 29 A. D. 274 (dictum). 48. Earle v. Barnard, 22 How. Pr. 437. 49. Merchants' Bank v. Thomson, 55 N. Y. 7. 50. Dunn v. Huether, 64 Hun, 18. 51. Stevens v. Hunt, 15 Barb. 17. 52. Camardella v. Schwartz, 126 A. D. 334. 53. White v. Kane, 51 Super. 295. 252 Natural Peesons and Their Holdings, § 349. Extinguishment. — In the early case of Jack- son V. Edwards, 22 Wend. 498, the court of errors pro- nounced too difficult to decide the question whether the inchoate dower of the wife of a tenant in common was cut off by a decree in partition. That such dower is cut off is now too well established to need citation of authority; it occurs in every partition suit. The only question is whether the wife was duly served.^* In foreclosure the inchoate dower of mortgagor's wife who has been duly served as defendant is cut off by the decree if she joined in the mortgage. If she did not join, her dower is superior to the mortgage, and she cannot be compelled to litigate it even though made defendant in 'the action.^^ Inchoate dower cut off by the foreclosure of a second mortgage cannot be claimed as still existing because the wife did not join in the execution of the first mortgage.^^ § 350. Vendee. — rWhen vendor has been unable to obtain a release or other extinguishment of his wife's inchoate dower, what shall the parties do? This is properly a question of the relief afforded to vendee and is more fully discussed in Chapter X. The vendee may not wait until the wife 's death and then enforce the contract if the property has greatly increased in value." He may sue at law for damages.^^ And according to some cases he can in equity secure specific perform- 54. Coster v. Clarke, 3 Edw. 428. 55. Merchants' Bank v. Thomson, 55 N. Y. 7; People v. Knicker- bocker Life Ins. Co., 66 How. Pr. 115. 56. Calder v. Jenkins, 16 Supp. 797. 57. Peters v. Delaplaine, 49 N. Y. 362. 58. Sternberger v. McGovern, 4 Daly, 456; Martin v. Colby, 42 Hun, 1; Roos v. Lockwood, 59 Hun, 181; Bonnet v. Babbage, 19 Supp. 934. Aliens. 253 ance with an abatement from the price ;^^ but there is great conflict of opinion upon this point. § 351. 0. Separation. — When husband and wife are living apart, the condition may be attached to land de- vised to her that if she rejoin lier husband her estate shall terminate and vest in trustees for her life, re- mainder to her children.'''' § 352. Divorce, — In order to establish conviction of adultery such as to bar dower, there must be a judg- ment of divorce. Inchoate dower is not affected by dismissal of an action for divorce on the ground that both parties were guilty of adultery.^^ By statute a wife awarded a limited divorce with alimony may release her dower. The fact that the suit was not contested raises no such suspicion of col- lusion as to impair the release for which she received good consideration.^^ § 353. Aliens. — A resident alien died seized in 1864 leaving as his heirs non-resident alien children. Neither he nor any of the children had ever filed a dec- laration of intention to become a citizen. The prem- ises were foreclosed in an action to which the children were made parties, and purchased by W to whom the state released. It was held in Goodrich v. Russell, 42 N. Y. 177, that W's title was good; under chapter 115 of the Laws of 1845 the children took title except 59. Maas v. Morgenthaler, 136 A. D. 359. Tor full discussion, see 4 685. 60. Wright v. Mayer, 47 A. D. 604. Two judges questioned the validity of this condition on grounds of public policy, but con- curred in the result. 61. Schifler v. Pruden, 64 N. Y. 47, affg. 39 Super. 167. 62. Schlesinger v. Kliriger, 112 A. D. 853. 254 Natural Persons and Their Holdings, as against tlie state, and both interests had been ac- quired by W. J M, a citizen, died seized in 1868, leaving a father, brother and sisters, non-resident aliens, and a sister, A, nephews and nieces, resident citizens. The sister's inheritance being immediate was held to vest in A a good title notwithstanding the existence of the father and alien brothers and sisters.®^ A sister, the wife of a citizen, having so inherited, was not divested of her title in favor of the alien father by chapter 261 of the Laws of 1874." The treaty of 1844 with Wurtemberg provides that an alien shall be allowed two years to sell his inherit- ance, "which term may be reasonably prolonged ac- cording to circumstances." Under such provision infants take no more time than adults, and the lapse of seven years without application renders so improb- able the possibility of any tribunal thereafter extend- ing the time as to form no objection to title.*^ Under the law of 1845 a resident alien did not inherit from a naturalized citizen. Nor did the non-resident alien widow of a citizen who "had been naturalized after marriage take dower .^* Under chapter 38 of the Laws of 1874 a non-resi- dent alien can inherit from a citizen.^' To make title marketable, aliens of the same blood and kinship with decedent should be joined in parti- tion so that their inability to inherit may be established by the judgment.^* 63. Smith v. Mulligan, 11 Abb. N. S. 438. 64. Luhrs v. Eimer, 80 N. Y. 171, affg. 15 Hun, 399; Wieland v. MuUer, 65 How. Pr. 245. 65. Wieland v. Muller, 65 How. Pr. 245. 66. Same; Greer v. Sankston, 26 How. Pr. 471. 67. Recor v. Blackburn, 71 Hun, 54. 68. Toole V. Toole, 112 N. Y. 333; Recor v. Blackburn, 71 Hun, 54. Eemaindermen. 255 § 354. Unborn Persons. — The legislature has the power to authorize the sale of real estate of persons not in being, including their future contingent in- terests.^^ A judgment directing the sale of real estate, in which have been created remainders subject to open and let in after-born children, does not cut ofE such children unless it makes provision for their contingent inter- ests.™ § 355. Mortgagees in Possession. — A mortgagee in possession who does not satisfy the debt out of the premises and who does not retain possession for twenty years, does not pass seizin to his heirs. Such heirs are not necessary parties on a foreclosure by the mort- gagee 's administrator.''^ § 356. Eemaindermen. — A remainderman, whether his estate be vested or contingent, has a property that cannot be taken by the state for a private use.''^ Though not seized in fact he is seized in law.'^ But where there is equitable conversion, the remainderman takes no estate in the land.'* A mortgage made by a trustee for the purpose of pro- tecting the trust estate in terms included the remain- der also. On its foreclosure the remaindermen were made parties as subsequent encumbrancers and de- faulted. It was held that regardless of what might have been the result had they litigated their interests, they were bound by the judgment of foreclosure.'^ 69. Ebling v. Dreyer, 149 N. Y. 460. 70. Barnes v. Luther, 77 Hun, 234. 71. Haberman v. Baker, 128 N. Y. 253. 72. Powers v. Bergen, 6 N. Y. 358. 73. Jenkins v. Fahey, 73 N. Y. 355. 74. Cornell v. Cornell, 14 St. Rep. 612, affd. 109 N. Y. 644, with- out opinion; Argall v. Raynor, 20 Hun, 267. 75. Goebel v. Iffla, 111 N. Y. 170, affg. 48 Hun, 21. 256 Natural Peesons and Their Holdings. The interests of the remaindermen cannot in the absence of power of sale, proof of insufficient person- alty or order of the surrogate's court be used by the executor to pay debts charged primarily on the per- sonalty.''^ The tenant (A) for life of a third party (C), with vested remainder upon such party's death, may not attempt to purchase a fee, in conflict with the contin- gent remainder devised to B in case of A's death be- fore C." § .'^37. Tenants in Common. — A devise to persons named, as to my children A, B, C and D, is not to a class, but vests title in them as tenants in common.^^ A and B, owning as tenants in common, conveyed to B and C as joint tenants. The deed was held effect- ive and unobjectionable.'^ A, B, and D owned as tenants in common. A, B and C entered into a party wall agreement with P, and later B, C and D conveyed to A. It was suggested that the agreement became binding as to D 's share by estoppel when A took title, but the point was not de- cided.*" Husband and wife may take as tenants in common if the habendum clearly shows intent to convey to them as such.*^ § 358. Joint Tenants. — A joint tenancy may be cre- ated by a deed of tenants in common to one of them- selves and a third person as joint tenants.*^ 76. Scholle v. SchoUe, 113 N. Y. 261. 77. Stokes v. Hyde, 14 A. D. 530. 78. Hornberger v. Miller, 28 A. D. 199, affd. 163 N. Y. 578, with- out opinion. 79. Colson V. Baker, 42 Misc. 407. 80. Conlen v. Eizer, No. 2, 110 A. D. 887. 81. Hicks V. Cochran, 4 Edw. 107. 82. Colson V. Baker, 42 Misc. 407. Desceiptio Personab. 257 A devise to executors and their survivor as joint tenants shows that they were not to take individually, and is tainted with the suspicion of a secret trust.*^ § 359. Tenants by the Entirety. — Husband and wife ordinarily take as tenants by the entirety. It requires clear language to vest in them as grantees any other estate. For instance, habendum, to them " as tenants in common and in equality of estate and not as joint tenants" was held insufficient to prevent them from taking as tenants by the entirety.^* A deed to C D and H D his wife vested title in them as tenants by the entirety. On the death of C D, H D took the entire estate.*" Nor is this rule changed by Real Property Law, § 56.8« The estate of one tenant by the entirety may be sold under execution, and may be purchased by the other tenant." 2. Artificial Persons. § 360. Designation. — Unless a party is plainly desig- nated as artificial, he is construed as a natural person acting individually. An uncertain term, as in a grant to A " and his associates, ' ' may be wholly disregarded.^ § 361. Descriptio Personae. — The name of a person followed by the name of an office or title, without other words indicating that he is acting in such capa- city, leaves the latter mere descriptio personae. A 83. Forster v. Winfleld, 142 N. Y. 327. 84. Bias v. Glover, Hoff. 71. 85. Bertles v. Nunan, 92 N. Y. 152; Veit v. Dill, 78 Hun, 171; Reynolds v. Strong, 82 Hun, 202 ; McArthur v. Weaver, 129 A. D. 743. 86. Price v. Pestka, 54 A. D. 59. 87. Mardt v. Seharmacli, 65 Misc. 124, adding obiter that one Such tenant may convey voluntarily to the other. 1. Ennis v. Brown, 1 A. D. 22. 258 ARTinciAL Persons. contract of sale by "C, executor of the estate of L,"^ is fulfilled by the tender by C, who as executor had no power of sale, of a deed executed by the devisee with , C 's warranty.^ In general the word " as " is the touch- stone; in its absence a grantee, regardless of the habendum, takes individually.^ § 362. Attorney in Fact. — Construction of Power. — A power of attorney to ' ' grant, bargain, sell, exchange, demise and let for such prices or rents and on such terms as to my attorney should seem meet," was held as broad as language could make it, including even the authority to make a gift.* A power of attorney exe- cuted in 1891 to sell and convey all my real estate, also to borrow on mortgage on all my real estate of which I am now seized or may hereafter be possessed is suffic- ient to sustain a conveyance of realty acquired in 1895 ; literally it authorizes only a mortgage of such realty, but as a continuing power its intent evidently was broader.^ A power authorizing the execution of a con- tract for the exchange of lands confers on the attorney by implication the authority to provide for incidents of performance not mentioned in the contract, such as fixing the place for delivery and the person to receive cash and deed; also to extend the time for perform- ance.^ § 363. Married Woman. — ^A married woman may now appoint her husband attorney in fact.' 2. Clexton v. Tunnard, 119 A. D. 709. 3. Title Guarantee & Trust Co. v. Tallon, 101 A. D. 187; Van Schaick v. Lese, 31 Misc. 610; Pfeiffer v. Rheinfrank, 2 A. D. 574^ Kanenbly v. Volkenberg, 70 A. D. 97. 4. Van Zandt v. Furlong, 18 Supp. 54. 5. Finch v. Gillespie, 122 A. D. 858. 6. Grillenberger v. Spencer, 7 Misc. 601. 7. Wronkow v. Oakley, 133 N. Y. 505. Agent. 259 When the wife joins with her husband in a power of attorney to sell, convey, etc., any and all my real or personal property in N. Y. County and give in our names good and sufficient deeds therefor, her intent evidently is to authorize release of dower in his land.^ A power from the wife to sell, mortgage or otherwise dispose of land in which she is interested is also suffi- cient for that purpose ;'and an express authority to re- lease dower may not be disregarded.^" § 364. Fiduciary. — An attorney in fact may act for a general guardian in satisfying a mortgage, which is a mere ministerial act.^^ § 365. Grantee. — B held a power of attorney from A which did not purport to authorize conveyances. Premises were conveyed to B as attorney in fact for A and a deed of same was executed to C by B as such attorney. A case arising out of this curious situation was decided in Werner v. Wheeler, 142 A. D. 358 ; but it turned on a technical question of breach of cove- nant, and no judge concurred in the published opinion that B's deed did not convey marketable title. § 366. Agent. — It has been held in a partition suit that an agent without written authority was not ' ' law- fully authorized," within the Eeal Property Law, § 224, to subscribe a lease for a period exceeding one year. This seems a rather casual way of disposing of the rights of the tenant (not a party to the action) who had taken possession and paid rent under an admitted oral authorization to the agent.^^ 8. Piatt V. Finck, 60 A. D. 312. 9. Parker v. Baker, 28 W. D. 97. 10. Wronkow v. Oakley, 133 N. Y. 505, rvsg. 64 Hun, 217. 11. Forbes v. Eeynard, 113 A. D. 306, affg. 49 Misc. 154. 12. Griffin v. Baust, 26 A. D. 553. 260 Aktificial Persons. § 367. Fiduciary. — Auctioneer, — An auctioneer is a stakeholder whose duty it is to hold vendee's deposit until the passing of title. If he sooner turns it over to vendor, he beomes personally liable to vendee upon the latter 's refusal to complete because of unmarket- able title.i' § 368. Receiver. — The appointment of a receiver of vendor's property makes title unmarketable; vendee cannot get possession without having the receiver dis- • charged, which he is under no obligation to do." § 369. Executor. — A will devised to executors in trust and appointed A, B, C and S executors. S alone qualified; A died; B and C renounced. In foreclosure S was made defendant as sole executor and trustee. On the purchaser's objection it was held so doubtful whether title did not vest in B and C in spite of their re- nunciation that the purchaser was relieved.^^ The judges who decided Matter of Bull, 45 Barb. 334, were of opinion that upon the removal of an executor by the surrogate he ceased to be trustee. § 370. General Guardian. — A general guardian own- ing a mortgage may satisfy same by attorney ;^^ or having foreclosed as sole plaintiff and bid in the prem- ises, may convey same without leave of court." The parents are guardians in socage and entitled to 13. Merritt v. Archer, 163 A. D. 648, rvsg. 82 Misc. 515. 14. Warren v. Banning, 21 Supp. 883, modified 140 N. Y. 227. 15. Argall v. Raynor, 20 Hun, 267. The point at issue is one aspect of a question which usually arises in connection with Power of Sale. For numerous cases on the general subject, see §§ 273- 275. See also Clemens v. Clemens, 37 N. Y. 59. 16. Forbes v. Reynard, 113 A. D. 306. 17. Bayer v. Phillips, 17 Abb. N. C. 425; and see Cook v. Wright, 160 A. D. 64. Fiduciary. 261 the custody of the infant. Where the law directs service on the general guardian, and no guardian has been appointed by will of the deceased father or by court, service on the mother will be sufficient.^^ § 371. Trustees. — A statute referring to the trustees of an estate will be construed to mean the acting trus- tees." A will attempted to create complicated trusts and appointed executors but no trustees; in a partition suit adjudging the will void such executors were made parties and it was held that as trustees they repre- sented the beneficiaries.^" § 372. Appointment. — Appointment of trustees is not necessary, for the supreme court will execute the trust."^ § 373. Renunciation. — An instrument executed eight years after the deed of trust whereby one of the three trustees declares his non-acceptance of the trust and relinquishes all claim thereto is ineffectual to prevent title from vesting in him or to divest same.^^ Where one or more of the trustees named in the will have renounced, the title and power vest in those who qualify and a conveyance by the qualifying trustees is valid.^^ § 374. Survival. — On the death of one or more trus- tees the survivors take the entire estate.^^ Where au- 18. Matter of Bull, 45 Barb. 334. 19. Matter of Bull, 45 Barb. 334. 20. Clemens v. Clemens, 37 N. Y. 59. 21. Kirk v. Kirk, 137 N. Y. 510. 22. Hartley v. James, 50 N. Y. 38. 23. Leggett v. Hunter, 19 N. Y. 445, affg. 25 Barb. 81. The earlier case of Dominick v. Michael, 4 Sandf. 374, to the contrary, cannot be considered an authority. 24. Clemens v. Clemens, 37 N. Y. 59. 262 Artificial Persons. thority is given to appoint successor trustees, but no such appointment has been made, the survivors can continue to act.^^ § 375. Substitution. — The usual and proper method of procuring the substitution of a trustee is by action. The Revised Statutes (1 R. S. 730, § 69) also author- ized proceedings to be begun by petition.^^ In such proceeding the heir is entitled to notice." Upon ap- pointment of such trustee, the requirement of a bond was in 1890 discretionary with the court.^^ The supreme court has inherent jurisdiction upon the death of a sole trustee to appoint his successor. If by statute notice is directed to be given to any one, such notice is a mere formal requirement and failure to give same a mere irregularity,^' § 376. Sale. — A statute authorized a certain trustee, Clarke, to sell for the maintenance and support of his family. He conveyed for cash which was used to pay his indebtedness to the grantee for board of himself and his children and for future board. The title was held marketable over the objection of a subsequent purchaser in foreclosure.^" 25. Belmont v. O'Brien, 12 N. Y. 394. 26. Leggett v. Hunter, 19 N. Y. 445. 27. Roome v. Phillips, 27 N. Y. 357 (dictum). 28. Evangelical Lutheran Church v. Rabell, 141 A. D. 925. Pro- vision for bond was afterwards made by statute. 29. Griffin ▼. Baust, 26 A. D. 553. 30. Doe V. Mclntyre, 4 Duer, 171 (not reported). This was one of a series of transactions by which Clarke succeeded in wasting a large estate. From the reports of several different litigations, including Williamson v. Berry, 8 How. (U. S.) 495, it seems hardly probable that the Mclntyre sale was a bona fide cash transaction. It is, however, stated that Mclntyre 's mortgagee was bona fide. The United States supreme court held that Clarke's conveyance of another parcel in part to satisfy a debt was not a " sale " ■within the statute. Fiduciary. 263 A trustee witli power of sale may convey for a past consideration received by the beneficiary.'^ § 377. Death. — T, acting in behalf of the F Co., took certain real estate in his own name. Upon his death testate, it was held that such property did not pass under the will, but descended to his heirs in trust for F Co., and that the heirs would be directed to con- vey to F Co.'s vendee.^^ § 378. Unauthorized Acts. — Property purchased by a testamentary trustee without authority, though sub- ject to be impressed with a trust in favor of the bene- ficiaries, is not directly subject to the operation of the will; the situation is the same as though the trustee had taken title in his own name, and he is the only party defendant necessary upon foreclosure of his sub- sequent mortgage.^* § 379. Termination. — The conveyance by one trustee A to his co-trustee B is not effective to divest A's title.^* Nor is a conveyance by all the trustees and all the beneficiaries effective to terminate the trust.*^ The legislature may authorize the sale of trust prop- erty in which after-born children would take a re- mainder. Children born after the statute have no vested interest in the premises; they take a share in the proceeds only.'^ In general, after-born children, whether beneficiaries or remaindermen, may be cut 31. Voorhies v. Voorhies, 66 Misc. 78. 32. Merritt v. Farmers' Fire Ins. & Loan Co., 2 Edw. 547. 33. McLean v. Ladd, 66 Hun, 341. 34. Hartley v. James, 50 N. Y. 38. 35. Priessenger v. Sharp, 59 Super. 315. 36. Leggett v. Hunter, 19 N. Y. 445. 264 Artificial Peesons. off by proper provision made for them as a class in a judgment or decree directing sale of the real estate.''' § 380. Beneficiary, — Of Income. — The beneficiary of income for life has no estate in the land and is pro- hibited by statute from assigning or disposing of his interest in the income. He cannot be divested of such interest by estoppel or by judgment.^^ Where he also owns a remainder, he may convey the remainder.^^ § 381. Trustee As. — The sole beneficiary is incom- petent as sole trustee to execute the trust." The legal and equitable estates will merge for the period of the beneficial interest; but where there is a power of sale extending to the whole trust it may be exercised by a trustee who is sole beneficiary for a minority " or of an undivided fraction.^^ § 382. Partnership. — Where real estate has been bought by partners with partnership funds, the sur- viving partner can compel a vendee to take title on a sale to pay partnership debts, by joining the infant heirs of the deceased partners as defendants in his action for specific performance; such heirs are mere trustees.^' 37. Kent v. Church of St. Michael, 136 N. Y. 10. Dominiek v. Michael, 4 Sandf. 374, in so far as it asserts the contrary, shows a fatal lack of imagination. This whole subject is more fully dis- cussed in connection with Procedure, § 114. 38. Matter of Brennan, 21 A. D. 236; Hilton v. Sowenfeld, 53 Misc. 152. 39. Van Wyck v. Richman, 33 Misc. 404. 40. Haendle v. Stewart, 84 A. D. 274; Hilton v. Sowenfeld, 53 Misc. 152. 41. Weeks v. Prankel, 197 N. Y. 304, rvsg. 128 A. D. 223. 42. Sweet v. Schliemann, 95 A. D. 266. 43. Delmonico v. Guillaume, 2 Sand. Ch. 366. Private Corporations. 265 The vendee of partnership property brought specific performance and obtained a judgment directing that if the wife of partner R should refuse to join in the deed the value of her inchoate dower should be deducted. On appeal the court, suggesting that it was "perhaps questionable " whether the wife had dower, ordered a new trial unless plaintiff would consent to take sub- ject to the wife's claim." The rule that the wife has no inchoate dower, nor any interest "except after settle- ment of the claims of creditors, is laid down in Daw- son v. Parsons, 10 Misc. 428. The existence of the alleged partnership usually raises a question of fact which tends to throw doubt on titles. The court may refuse to decide it in the absence of the heirs and devisees of a deceased part- ner,^^ or where the evidence is scanty and perishable.*^ Declarations of executors are not competent.*' § 383. Society.— A voluntary unincorporated society may convey according to its own rules. A rule of the Society of Shakers provided that no real estate should be disposed of without the consent of the elders. Such rule did not require the consent to be in writing.** § 384. Private Corporations. — Organisation. — A cor- poration, whether membership or stock, may, in spite of irregularities in its organization, take and convey marketable title; having begun to act, it is at least a corporation de facto. So held of a religious corpora- tion, where the defect complained of was that the per- sons who signed the charter did not affix their seals;** 44. Dixon v. Rice, 16 Hun, 422. 45. Argall v. Eaynor, 20 Hun, 267. 46. Weinstein v. Weber, 178 N. Y. 94, approving 58 A. D. 112. 47. Huber v. Case, 93 A. D. 479. 48. Teiner v. Eeiss, 98 A. D. 40. 49. Stoker v. Schwab, 28 W. D. 510. It would seem that Lynch 266 Artificial Persons. and of a business corporation where objections were raised to the citizenship of the incorporators, the au- thentication of their signatures and the stated purpose of incorporation.^" Whether the beneficiary of a charitable devise is or is not incorporated was not material at common law. It has been held that the trustee takes title and may later under proper authorization convey the property to a corporation organized to carry on the purposes which were previously being performed voluntarily." § 385. Statutory Authority. — • Business Corpora- tions: Domestic. — Where a statute restricts the right of a corporation to hold real estate to five years but in- flicts no penalty for failure to comply with the formali- ties prescribed to authorize a longer holding, the title to the real estate is not affected, and the corporation can give good title after the five years have expired.^^ § 386. Same: Foreign. — The General Corporation Law gives foreign corporations on filing their certifi- cates the same rights to engage in business as domestic corporations, and there is no limitation thereto in re- spect to acquiring land either expressly or by impli- cation from public policy. Authority' to acquire any particular parcel can also be rested upon the statu- tory permission to acquire such real property as may V. Pfeiffer, 110 N. Y. 33, might well have adopted this theory, but it reached the same result by a rather violent application of a rule of evidence. 50. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576, rvsg. 72 Hun, 18. 51. Matter of N. Y. Protestant Episcopal Public School, 31 N. Y. 574. The authority of this case was limited by Bascom v. Albert- son, 34 N. Y. 584. 52. Home Insurance Co. v. Head, 30 Hun, 405. Private Corpokations. 267 be necessary for its corporate purposes, for third per- sons will not be permitted to question whether the cor- poration has more land than it needs for office pur- poses.^^ § 387. Religious Corporations.— A religious corpo- ration as grantee may take in fee simple absolute. Ho trust inheres in its title, which can be conveyed with judicial consent and approval.^* Even when the amount of real estate which the cor- poration may take and hold is limited by law and prop- erty in excess thereof is devised to it, the corporation may still give good title to land conveyed by it. The devise is voidable only as to the excess; and the heirs of testator will be limited to recovering such premises not conveyed as can be shown to be beyond the limit when measured by the value of property previously owned plus the proceeds of the land sold.^^ The title by devise cannot be attacked collaterally.^^ Consent of court need not precede the contract of sale; and when the order granting leave has been al- lowed, its entry is a mere formality which need not be performed before closing unless demanded.^^ The case may be held to permit the corporation to obtain formal leave of court.^' 53. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576; Laws of 1892, c. 687; Laws of 1887, c. 450; Alward v. Holmes, 10 Abb. N. C. 96. 54. Matter of First Presbyterian Soc, 106 N. Y. 251. The early case of R. P. D. Church v. Mott, 7 Paige, 77, seems to assume the necessity of a trust. 55. Hornberger v. Miller, 28 A. D. 199, affd. 163 N. Y. 578, with- out opinion. 56. Moskowitz v. Hornberger, 20 Misc. 558. 57. Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. Pr. N. S. 484; Lynch v. Pfeiffer, 110 N. Y. 33. 58. Reformed Protestant Dutch Church v. Mott, 7 Paige, 77. 268 Artificial Persons. § 388. Membership Corporations. — A benevolent society incorporated under chapter 319 of the Laws of 1848 became a membership corporation upon the enact- ment of chapter 559 of the Laws of 1895; it could not even with the consent of the supreme court consolidate with a religious corporation.^^ § 389. TJltra Tires. — It will not be presumed that a foreign banking corporation is subject to all the re- strictions imposed by law upon domestic banking cor- porations. There is no rule of public policy that pre- vents a foreign banking corporation from acquiring real estate in this state.*" In the absence of actual stat- utory prohibition by this state, the foreign corpora- tion's deed could not be impeached even if it had ex- ceeded its corporate power.^^ § 390. Dissolution. — On the dissolution of the A L Co., all its stockholders except two agreed to the sale and the proceeds thereof were distributed by trustees who accounted. It was held that the title could not thereafter be questioned by any stockholder.*^ A statute prohibiting the sale of real estate by an insol- vent corporation is intended for the benefit of creditors and at most makes title voidable. Where all the cred- itors consent or are provided for in cash, title is good.** The receivers of a foreign corporation appointed by the state of its organization are necessary parties to the foreclosure of a mortgage owned by it; an ancillary re- ceiver does not take their place.*^ 59. Selkir v. Klein, 50 Misc. 194. 60. Alward v. Holmes, 10 Abb. N. C. 96. 61. Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576, rvsg. 72 Hun, 18. 62. Wentworth v. Braun, 78 A. D. 634, affg. 38 Misc. 702, affd. 175 N. Y. 515, without opinion. 63. Scharrath v. Dermody, 117 Supp. 968. 64. Ely V. Matthews, 58 Misc. 365. Watercourses. 269 B. Estates as Determined by Natural Features of Property and Its Use. 3. Natural Features. § 391. Mines. — A western mining claim, contracted to be sold, is subject to the law of marketability.^ A salt lease may be sold ; and even though the lease is sub- ject to forfeiture for a cause which the state can waive, the sale will, in the absence of actual forfeiture, be enforced. An assignment of such lease is not within a statutory prohibition of subletting.^ A reservation of mines is no objection to title in the absence of evidence of minerals.^ § 392., Watercourses. — A natural stream is not an easement, and the purchaser may not object to its exist- ence on the premises. It is an incident of the property itself of which he must take notice.* When vendor con- tracts to sell premises bordering on a river, clear title to the upland is all he is required to make. All vendee can claim in addition is the incidental riparian rights given by the law of the state and subject to the rights of the state.^ The reservation of water privileges in a Van Eens- selaer lease refers to milling purposes and does not in- clude an irrigating ditch. If there is no stream on the premises such reservation is no objection to title.* But the reservation of a right to use a stream for log- 1. Selover v. Chaffee, 20 W. D. 115. 2. Hasbrook v. Paddock, 1 Barb. 635. 3. Winne v. Reynolds, 6 Paige, 407; and see Miller v. Ball, 64 N. Y. 286. 4. Archer v. Archer, 84 Hun, 297, affd. 155 N. Y. 415. 5. Bigler v. Morgan, 77 N. Y. 312. 6. Winne v. Reynolds, 6 Paige, 407. 270 , Natural Featubbs. ging'' or for water power^ is objectionable, as is the reservation of the right to use a spring.' § 393. Land Under Water. — The owner of the up- land has a pre-emptive right to land under water. Where the terms of sale of right, title and interest give notice that the premises are made land, orig- inally under water, the purchaser must be content with the transfer of such right.^" The commissioners of the land office are authorized to grant patents for such land and also for the foreshore to the owner of the up- land. Their grants will be liberally construed.^^' Land between high and low water marks vested in the City of New York by its ancient charters.^^ Such charters did not, however, extend to tidal creeks flow- ing into the Harlem River. The bed of such creeks could be conveyed to individuals and would be in- cluded by a patent granting "creeks." ^* A conveyance running to the marsh was construed in Brenstein v. North American Realty Co., 119 Supp. 1, as running to highwater mark. There is no presumption of possession of marsh and beach land except under title running back to a patent.^* Oyster beds are governed by the law of riparian rights ;^^ they are incidental to the ownership of the up- land. 7. Miller v. Ball, 64 N. Y. 286. 8. Wheeler v. Tracy, 49 Super. 208. 9. Same. 10. Van Rensselaer v. Bull, 17 Supp. 117. 11. Bardes v. Herman, 144 A. D. 772, affg. 62 Misc. 428, afid. 207 N. Y. 745, without opinion; Warth v. Herman, 207 N. Y. 745. 12. McFarlane v. Kerr, 10 Bosw. 249. 13. Breen v. Locke, 46 Hun, 291. 14. Crabbe v. Hardy, 77 Misc. 1. 15. Bigler v. Morgan, 77 N. Y. 312. Improvements. 271 The location of the bulkhead line is a matter of pub- lic record of which vendee must take notice.^^ § 394. Improvements. — Title. — A house affixed to the freehold is part of it and passes with it." Parti- tions and plumbing work are fixtures to which vendee is entitled and which vendor may not remove.^^ Boil- ers, heaters, radiators, ranges, dumb waiters and tubs are also fixtures ordinarily passing with the freehold.^^ The purchaser of land with the buildings there- on erected, gets what he bargained for if the buildings have an easement of support for their walls, although the walls may be on the adjoining premises.^" A com- plete two-story brick building also fulfills such con- tract even if a small rear extension, resting at one end against an adjoining structure, has no easterly wall of its own.^^ Defects in the physical condition of the house are not defects in title. Vendee cannot recover for re- pairs, nor for the expense of removing tenement house violations.^^ § 395. Impairment. — It very frequently happens that the building constitutes the greater part of the value in the subject matter of the contract. In such case, if the building is destroyed by fire while both 16. Interborough Rapid Transit Co. v. Littlefield, 166 A. D. 567.. 17. Stone v. Thaden, 16 Daly, 280. 18. Smyth v. Sturges, 108 N. Y. 495, affg. 30 Hun, 83. 19. Murphy v. Smith, 61 A. D. 574. 20. Schaefer v. Blumenthal, 169 N. Y. 221; German- American Real Estate Title Guarantee Co. v. Meyers, 32 A. D. 41 ; later and higher authorities than Drake v. Shiels, 7 Supp. 209, to the con- trary. 21. Cantor v. Robinson, 196 N. Y. 546. 22. Harsha v. Reid, 45 N. Y. 415; Woodenbury v. Spier, 122 A. D. 396. See § 454. 272 Easement. legal and equitable title and possession are still in the vendor, there is failure of consideration, and a subse- quent tender of the bare ground does not protect vendor from vendee 's claim for return of his payments on account.^^ Substantial damage before the closing date gives vendee a good defense in an action at law;^* but after closing date or earlier right of possession in vendee, the loss must fall on vendee, even though legal title has not actually passed.^^ On judicial s'ale material damage to the building be- fore closing date should relieve the purchaser.^^ Where the damage is very slight, the purchaser may upon adequate compensation, be held to his bargain.^ A building erected upon a proposed public street is not depreciated by apparent liability to be condemned without compensation. A law providing for such con- demnation is unconstitutional.^* 4. Easement. § 396. Effect. — An easement may be adequate for vendor's purpose in making marketable title, as where he contracts to sell a house and tenders a building with an easement of support for one wall upon adjoining 23. Smith v. McCluskey, 45 Barb. 610; Wicks v. Bowman, 5 Daly, 225. 24. Listman v. Hickey, 65 Hun, 8, affd. 143 N. Y. 630, on opinion below. 25. McKechnie v. Sterling, 48 Barb. 330; Sewell v. Underbill, 197 N. Y. 168, affg. 127 A. D. 92. 26.Harrigan v. Golden, 41 A. D. 423. 27. Aspinwall v. Balcb, 4 Abb. N. C. 193 (dictum). In Mutual Life Ins. Co. v. Balch, 4 Abb. N. C. 200, it is implied that a loss of about 4 per cent, plus one year's rent might have been com- pensated. 28. German^merican Real Estate Title Guarantee Co. v. Mey- ers, 32 A. D. 41. Creation. 273 premises;^' but it is not title; and where the contract calls for certain premises free from encumbrances ex- cept an eight-foot courtyard, it is not satisfied by a lot 8' smaller, with an easement for a courtyard over the remaining 8' strip.^" A consent to a street surface railway is no objection to title.^^ It is assumed in Warren v. Hall, 41 Hun, 466, that an easement for a sewer is objectionable. The owner of the servient tenement is placed in such a position of joint ownership with the dominant owner that he cannot purchase in hostility to the latter's rights.^^ § 397. Creation. — An easement of support is often created by the owner of adjoining premises building a row of houses separated by single walls. In such case the wall becomes a party wall or subject to beam rights without further action on his part.^^ But no easement of light and air arises under such circum- stances, nor is any ever implied in this country.'* Whe- ther a right of way was created by an owner of several buildings who remodeled them so as to provide a single entrance for all four, with a connecting hallway, was considered at least a question of doubt in Adams' Ex- ecutors V. Spofford, 58 How. Pr. 81.'^ It has been said that executors cannot prejudice the estate of devisees by imposing an easement.'^ 29. Schaefer v. Blumenthal, 169 N. Y. 221. 30. "Weiss V. Schweitzer, 47 Misc. 297. 31. Greenspan v. Saladino, 126 A. D. 331. , 32. Turner v. Walker, 40 Misc. 379. 33. Schaefer v. Blumenthal, 169 N. Y. 221; Popper v. Peck, 14 W. D. 235; Meadows v. Michel, 135 A. D. 213. 34. Wilmurt v. McGrane, 16 A. D. 412. 36. It was subsequently decided that there was no easement. - Outerbridge v. Phelps, 58 How. Pr. 77. 86. Bloomfield v. Ketcham, 25 Hun, 218, rvsd. 95 N. Y. 657, on 274 Easement. Evidence that a building had been for over forty years supported on one side by beams resting in an adjoining wall does not of itself establish prescriptive beam rights.^' § 398. Specific Easements. — Support. — Where a sin- gle wall serves for two adjoining houses, without writ- ten agreement, it may be subject to rights in the owner of each parcel. If it is on the line, it may be a true party wall; if wholly on one lot, it may be subject to beam rights. For purposes of marketability the ques- tion is often one of evidence. In the absence of record evidence of the character of a wall on the line, the case was remitted for further proof.^' An affidavit that a wall containing a sub- stantial angle was a party wall throughout was con- sidered insufficient evidence to that effect.^' Affidavits that the wall was built on the line by the common owner of both lots, with proof of its use for over 25 years as a party wall were considered satisfactory.*** It is no objection that a party wall is not centered on the boundary line;*^ nor even that it stands almost entirely on one side thereof.*^ When a party wall is established without covenant, the easement lasts only so long as the building endures. other grounds. It is not apparent why selling lots to front on a road should prejudice the estate, nor why executors should not have power to sell in that manner in their discretion even if it created an easement. 37. Neher v. Bruckner, 36 A. D. 625, affd. 165 N. Y. 617, without opinion. 38. German-American Real Estate Title Guarantee Co. v. Mey- ers, 32 A. D. 41. 39. Timmermann v. Cohn, 204 N. Y. 614, rvsg. 70 Misc. 327. 40. Powers v. Strauss, 103 A. D. 597. 41. Levy v. Hill, 50 A. D. 294. 42. Popper v. Peck, 14 W. D. 235. Right of Way. 275 Since the condition of tlie ■wall is obvious upon inspec- tion, vendee is entitled only to such building as exists at the time of the contract;*^ while on the other hand there is no objectionable encumbrance.** Beam rights were held a removable encumbrance in Higgins V. Eagleton, 155 N. Y. 466. § 399. Light and AAr. — An easement for light and air is never implied in New York, even though the con- ditions which show that a reservation thereof is neces- sary for the full enjoyment of what would be the domi- nant tenement are continuous and apparent.*^ But such easement may be created by covenant and there- upon becomes an objectionable encumbrance upon the servient tenement.*^ That the grant of the privilege of keeping the windows forever open that are now in ]the easterly side of said house survived the destruc- tion of the house was held probable; it was certainly sufficient to relieve the purchaser.*^ § 400. Right of Way, — Where the owner sells lots bounded on a street as shown on a city map, he dis- closes no intent to grant a right of way over the prem- ises lying in the bed of such street; and if the street is not opened, he may afterwards sell the bed thereof unencumbered.*^ Where he does not own the land described as a street, there is no implied covenant that such street exists.*^ 43. Greenspan v. Saladino, 126 A. D. 331. 44. Sehaefer v. Blumenthal, 169 N. Y. 221, rvsg. 51 A. D. 517. 45. Wilmurt v. McGrane, 16 A. D. 412. 46. Remsen v. Wingert, 112 A. D. 234, affd. 188 N. Y. 632, with- out opinion. 47. Same. 48. Bloomfield v. Ketcham, 25 Hun, 218, rvsd. on other grounds, 95 N. Y. 657. See also Highways, §§ 403 et seq. 49. InterboTough Rapid Transit Co. v. Littlefield, 166 A. D. 567. 276 Highways. A reservation of so much land as grantor may need for a right of way and construction creates an ease- ment or servitude running with the land.^" The title to an interior gore so described and shown on a map is not objectionable because it has no outlet to any highway.^^ § 401. Elevated Railroad. — It is to be supposed that a purchaser is aware of the easement of an elevated railway in the street in front of the premises, in which event he may not on closing object to same.^^ § 402. Extinguishment. — Non-user of an easement is no abandonment;^' nor can easements be cut off by a tax deed.^* 5. Highways. § 403. Intent of Grantor. — Questions arising out of the ownership of the bed of a highway bristle with difficulties. They are supposed to be solved by seek- ing the intent of a grantor who may have conveyed a century ago under entirely different circumstances and who probably had no iiitent one way or the other at the time. The fact is that where land is cheap and trans- ferred in latge units a road is usually regarded merely as a public means of communication and its.ownership is wholly ignored. When land is valuable and trans- ferred in small parcels, roads are realigned and the ownership of the bed of the old highway, now released 50. Turner v. Walker, 40 Mise. 379. 51. Coates v. Fairchild, 14 W. D. 189, affd. 89 N. Y. 631, on opinion below; Barber v. Woolf, 167 A. D. 627. 52. Goodman v. Schwab, 136 A. D. 583. 53. Eemsen v. Wingert, 112 A. D. 234, affd. 188 N. Y. 632, with- ,out opinion. 54. Turner v. Walker, 40 Misc. 379. Intent of Grantor. 277 ; from its servitude,^ becomes a matter of considerable importance. It is usually both, just and convenient that it should vest in the abutting owners. Conse- quently it is not surprising to find courts straining language into weird construction and seizing upon slight circumstances of bygone days to achieve this happy end by logic; but also it is not strange to find them shirking a decision in marketability cases or accepting the negative. The Andros patent of 1680 and the Dongan patent of 1685 contained the clause: "there being eight rods in breadth by the waterside left for a highway. ' ' Con- struing this language the court in Lembeck, etc., Brew- ing Co. V. Rosenstein, 168 A. D. 563, held it not an ex- ception, but at most the reservation of a public ease- ment — for it lay wholly within the area granted. In Matter of Ladue, 118 N. Y. 213, the court of ap- peals found that conveyances in 1795 and 1799 carried the fee of Stillwell's Lane even though made before the road was actually opened. The earliest deed cut- ting up Stillwell's farm described the premises con- veyed as follows: Beginning at northwest corner of meadow belonging to party of the first part * * * thence south * * * 5 chains 10 links along land of said party of the first part intended for a road ^ of 2 rods in. width, thence * * * to beginning, ac- cording to survey by Gr dated 12/5/95 * * * bounded south on the land of the party of the first part intended for a road * * * as will appear by said survey; with covenant that the road of 2 rods wide aforesaid to run along and adjoin the southerly and westerly sides of the premises hereinbefore granted 1. Tearing v. Irwin, 4 Daly, 385, 394. 2. Compare construction of words " piece of land marked ' street ' on said map " in Downes v. Dimock & Tinck Co., 75 A. D. 513. 2T8 HiGHWATS. to party of the second part according to said survey shall be laid out accordingly and run from B Road within one year and be forever kept open. The second deed conveyed the premises next southerly by reference to a map made by G in 1796, showing a road; and S conveyed various other parcels thereafter, none of which contained any right of way though none had any outlet except said lane. All of S's deeds gave precise areas which excluded the contents of the lane. The lane was used as a public road from 1822 to 1846, but abandoned in 1868. No claim, to either the land or street opening awards had ever been made by S's heirs. This decision was followed in Haberman v. Baker, 128 iSI. Y. 253, where the court remarked that there is no reason to infer an intention in the grantor to withhold the fee of the highway after parting with all adjoining land. Whether the sale of a lot on a closed street carried title to the middle of the old street, was held by the supreme court so doubtful a question as to render title unmarketable.^ Where the original owner conveyed parcels having access to other roads, did not include the lane in ques- tion in the area of the parcels conveyed and himself retained premises in connection with which he used the lane, it was held that he did not convey any of the lane.^ § 404. Municipal Proceedings. — The legislature can- not by mere declaration vest in the abutter the title to an abandoned roadbed.^ And although the statute provides for compensation to the owner when such land is acquired by the abutter, the commissioners ' decision 3. Darrow v. Horton,'6 S. R. 718. 4. Mott V. Mott, 68 N. Y. 246. 5. Fearing v. Irwin, 4 Daly, 385 (dictum). Dedication; Prescription; Condemnation. 279 as to title is not binding and the rights of the true owner are not extinguished by an erroneous award.* A contest between claimants for an award in street opening proceedings decides nothing as to title.'^ Where an award has been paid to the mortgagee, who then proceeds to sell in foreclosure, it seems clear that a bidder purchasing by the original description will not be compelled to complete.^ Proceedings instituted by a village, where the report has lain for fifteen years without confirmation by the trustees, will be disre- garded." The effect of the filing of the commissioners' map in such proceedings depends in part upon the provis- ions of the statute under which they may be acting. It has been held to govern the width of a Long Island City street laid out in 1873, prevailing over the width of the narrower road actually laid out and paved.^" There was no provision in the Laws of 1874, chap. 604, for closing streets in New York City above 59th Street; hence the omission of an existing highway from a map filed by the commissioners of parks in 1879 had no effect on title.^^ The filing of such a map creates no encumbrance upon land proposed to be taken.^^ § 405. Dedication ; Prescription ; Condemnation. — Legislation regulating the closing of city streets ope- rates no differently upon those laid out by the city than upon those dedicated.^^ 6. Post V. Hazlett, 12 Supp. 838. 7. Knapp v. Crane, 14 A. D. 120. 8. Bedford v. Fields, 21 Hun, 589. 9. Keating v. Gunther, 10 Supp. 734, affd. ^129 N. Y. 659, with- out opinion. 10. Ring V. Palmer, 83 A. D. 67. 11. Wagner v. Perry, 47 Hun, 516. 12. Same; Forster v. Scott, 136 N. Y. 577, affg. 60 Super. 313. 13. Fearing v. Irwin, 4 Daly, 385, affd. 55 N. Y. 486. 280 Highways. The Law of June 19, 1703, providing for the laying out of Bloomingdale Road, gave no compensation to the owners ; hence it will be interpreted to have vested in the city an easement only." Where the public has- an easement only in a highway and additional land is. transferred for highway purposes, an ambiguous deed will be construed to pass only such interest as the- municipality had in the land already occupied.^" A prescriptive right of way may be shown on clear- and strong proof; it is not necessary, where an interior plot is sold with right of way, that vendor should have- title to the roadbed.^^ A highway created by prescription is limited to the part actually used. Monuments set on the edge of such road without record authority cannot affect title- to premises already occupied by a building.^' § 406. Abandonment. — When the city owns the fee- of the highway, as in the case of the old Dutch roads, its abandonment does not cause title to revert to any former owner or vest in any abutter; it remains in the city.^* It may be acquired by the abutters by adverse possession." A municipality may abandon a portion of premises^ originally designated by it as a highway. Where the city of Brooklyn filed its map showing C St. a wide avenue, but subsequently under Laws of 1824, c. 193, 14. Bradley v. Crane, 201 N. Y. 14. 15. Same. 16. Metzger v. Martin, 87 A. D. 572, affd. 177 N. Y. 561, with- out opinion. 17. Lighton v. Syracuse, 48 Misc. 134, afEd. 112 A. D. 589, rvsd.. on other grounds, 188 N. Y. 499. 18. Sehaefer v. Hilliker, 140 A. D. 173. 19. Pooler v. Sammet, 130 A. D. 650, rvsg. 58 Misc. 469, and questioning the very unsatisfactory opipion in Talvey v. Bridges,. 15 SuRp. 878. Maps. 281 authorizing widening (but not narrowing) of streets, opened E St. on a different grade, occupying only part of the site of C St., and assessed the residue of said land for the E St. opening, it abandoned its right of way over said residue.^" A public highway is abandoned when owing to the topography another road is laid out at some distance from the site of the reserved right of way and is ac- cepted by the public, while the original site remains unused for centuries. It may also be abandoned in part by a statute narrowing it.^^ Where the owner quitclaims to a village "in trust nevertheless for the benefit of the inhabitants * * * to be held and maintained as public streets and ave- nues and for no other purpose," and the commissioners file a map showing certain streets as closed, said streets are abandoned and revert to the owner, who can there- after pass good title to land in the bed thereof .^^ A private right of way occupied adversely for over thirty years by the owner of the servient tenement is presumed to be abandoned and is released from the easement.^^ Fencing across for over twenty years and the failure to mention the right of way for over thirty- five years in deeds of the dominant tenement are con- clusive proof of its abandonment; grass-grown wagon tracks, as evidence to the contrary, are negligible.^* § 407. Maps, — Reference to. — ^Where the only de- scription of the premises in the deed tendered and in vendor's chain is as Lot No. 51 on a certain map, bounded by other lots and C St., and said map cannot 20. Seaman v. Hicks, 8 Paige, 655. 21. Lembeck & Betz Brewing Co. v. Rosenstein, 168 A. D. 563. 22. Downes t. Dimock & Finck Co., 75 A. D. 513. 23. Suydam v. Dunton, 84 Hun, 506." 24. Clody V. Southard, 57 Misc. 242. 282 Highways. be found, the title is so involved in obscurity and doubt as to be unmarketable.^" A map annexed to a deed of an adjoining plot a few years earlier, but not referred to in the deed in vendor's chain, is of little weight; it does not even jus- tify the inference of the existence of a road shown on A map not shown to be official or to have any au- thority does not create any doubt in titles by showing an old road which has been wholly disregarded by the entire neighborhood.^'^ A contract describing premises as bounded east by land of D Av. was construed obiter as importing access by a puhlic road.^* Such road was shown on a map filed in the county clerk's office, but there was no evi- dence of its being a public road and on the third trial the court found that there was not even a private right of way to the premises.^' § 408. Private Maps. — The owner of a large tract who lays same out in lots and streets in accordance with a map placed on file and conveys by reference to said streets as boundaries grants a right of way over each street to all grantees bounding thereon. Such easement is not extinguished by the laying out of a public street.^" Where the right of way in question is merely an alley 25. McPherson v. Sehade, 149 N. Y. 16. 26. Habennan v. Baker, 128 N. Y. 253. 27. Oakley v. Briggs, 17 Supp. 751. 28. Witte V. Koerner, 123 A. D. 824. 29. 152 A. D. 935. 30. Nicklas v. Keller, 9 A. D. 216. The opinion suggests obiter that releases from all such owners or proof of general abandon- ment as by building on the abandoned portion of the right of way or enclosing it would cure title. Scripture v. Morris, 38 A. D. 377, affd. 159 N. Y. 534, without opinion. Particular Roads. 283 toucliing the rear of five lots, its easement extends only to the abutting owners, and is extinguished by releases from them.^^ Where the tract is bounded by public highways and divided by streets shown as running across from high- way to highway, the purchaser of a block bounded by such streets is entitled to have them kept open through- out their entire length, and not merely along the sides of his block.^^ The owner of a large tract in 1860 filed a map show- ing streets in accordance with the official city map, and sold with reference thereto. In 1868 the commission- ers changed the city map. It was held that the owner evidently had no intention of giving any private rights of way, and that his title to the bed of a street aban- doned by the commissioners was marketable.^^ Where the map shows a "street " but the deed de- scribes the lot as bounded south by a piece of land marked "street " on said map, the grantor's intent not to create an easement is apparent.^* § 409. Possession. — It seems that where the only access to the premises is through an alley, that right of way must at the time of sale be physically travers- able.^^ § 410. Particular Roads. — Dutch roads: The fee is in the municipality.^* 31. Marshall v. Wenninger, 23 A. D. 275, rvsg. 20 Misc. 527,, affd. 163 N. Y. 579, on opinion below. 32. Kerrigan v. Backus, 69 A. D. 329. 33. Darker v. Beck, 11 Supp. 94; Bloomfield v. Ketcham, 25 Hun, 218, rvsd. 95 N. Y. 657, on a point of procedure. 34. Downes v. Dimock & Finck Co., 75 A. D. 513. 35. Meinell v. Meinell, 110 A. D. 891. The purchaser in parti- tion was required to complete, but was allowed three per cent, on the balance of the purchase price, for delay. 36. Mott V. Clayton, 9 A. D. 181; Schaefer v. Hilliker, 140 A. D. 284 Paeks. Aptliorpe's Lane: Fee conveyed." Bloomingdale Eoad: Fee not conveyed;^* under due proceedings it has been acquired by tbe abutters.^^ Brooklyn, Jamaica Turnpike : A Dutch road.^" Brooklyn, Newtown Turnpike: A Dutch road.^ Cowenhoven Lane: Location discussed.*^ Haarlem Road: A Dutch road.** Perrit's Lane: Fee conveyed." Stillwell's Lane: Fee conveyed.^^ 6. Parks. § 411. In many respects the problems arising out of appropriation of land to a park are similar to high- way questions; but some differences exist, due in part to the physical differences between the two, especially the normal availability of park land for other use. § 412. Public. — It has been held that the city of Brooklyn took the fee to the land intended for Prospect Park and could sell same when the land ceased to be needed for park purposes;*^ that the city had no contractual relations with neighboring owners and was not liable for incidental injury resulting from 173; Caminez v. Goodman, 119 A. D. 484; Pooler v. Sammet, 130 A. D. 650. 37. Mott V. Mott, 68 N. Y. 246. 38. Bradley y. Crane, 201 N. Y. 14. 39. Fearing v. Irwin, 4 Daly, 385. 40. Mott V. Clayton, 9 A. D. 181. 41. Caminez v. Goodman, 119 A. D. 484; Schaefer v. Hilliker, 140 A. D. 173. 42. Green-Shrier Co. v. State Realty & Mortgage Co., 199 N. Y., 65. 43. Pooler v. Sammet, 130. A. D. 650. 44. "Wise V. Curry, 35 Misc. 634. 45. Haberman v. Baker, 128 N. Y. 253. 46. Brooklyn v. Copeland, 106 N. Y. 496. Lease. 285 a change of park boundaries^ but the city's bonds were secured by a lien on all such land, to which marketable title could not be made.^'' § 413. Private. — The' unreported case of Adair v. Adair, 74 N. Y. 622, indicates that a park easement is not necessarily permanent. In that case R L, the owner of a 72-acre tract, in 1847 filed a map designat- ing the premises in question as a park; he then con- veyed the residue to various persons by reference to the map and in most cases subject to the payment of |3 per annum to G, who was thereby constituted trus- tee for regulating, fencing and improving said park ; in 1852 R L conveyed to B, C and D, reciting said map and deeds, habendum subject to the use of said owners, with a covenant by grantees not to use same except as an ornamental park; the premises were mortgaged by the successors of B, C and D to raise funds to improve the park, foreclosed and sold in 1862, since when no claim has been made by any of R L 's grantees, all of whom have ceased to make their annual payments. The briefs of counsel disclose that owing to unfore- seen development of the neighborhood, the open plot had become a nuisance, and that all the abutters ard- ently desired its conversion into building lots. The courts, without disclosing their reasons, held the foregoing title marketable. 7. Lease. § 414. Estate. — A leasehold as the subject matter of a contract of sale is governed by the same rules as a fee simple. The vendor impliedly warrants that he is the owner and has a right to sell.^ The vendee contracting 47. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, rvsg. 3 Lans. 429. 1. Drake v. Shiels, 7 Supp. 209. 286 Lease. with knowledge of adverse claim,^ or that the building on the premises is unfinished,^ must complete. Eentals in arrears at the time of foreclosure sale must be paid out of the purchase price.* A covenant to pay a portion of the, rents to a third party is an impairment of vendor's title constituting a breach of his contract.^ Under a long lease the probability that the tenant is required to pay taxes is so strong that a formal affida- vit on information and belief to that effect is sufficient to sustain the demand of a bidder in foreclosure that the referee be required to pay such taxes. The appel- late court may, however, receive and consider the lease.® The old Van Rensselaer lease in fee is discussed at length in Winne v. Reynolds, 6 Paige, 407, decided by Chancellor Walworth in 1837. Even at that date many provisions of the lease had become obsolete and con- stituted no substantial defect in title — such as the pound of wheat payable upon alienation. The pre- emptive right of purchase was, however, held an ob- jectionable restriction upon the power of alienation, sentimental rather than pecuniary, but still substantial. § 415. Encumbrance. — An outstanding lease on the premises which prevents vendor from giving posses- sion to vendee, is an encumbrance which renders title unmarketable.' It excuses a brief delay on vendee's part in demanding performance.* 2. Dunlop V. Mulry, 83 Supp. 1104, affd. 85 A. D. 498. 3. Riggs V. Pursell, 66 N. Y. 193. 4. Holden v. Sackett, 12 Abb. Pr. 473. 5. Bigler v. Morgan, 77 N. Y. 312. 6. Moller v. Duryea, 21 W. D. 459. 7. Tucker v. Woods, 12 Johns. 190; Sugarman v. Goldberg, 100 Supp. 1012; Poland v. Italian Savings Bank, 123 A. D. 598. 8. MoCool V. Jacobus, 7 Robt. 115. Consent. 287 "When the tenant has been made defendant' in parti- tion and has permitted judgment to be entered on his default barring the parties of all right in the premises and providing for immediate sale, the fact that by its terms the lease still has eighteen months to run is no objection to title. The tenant is bound by the judg- ment.' Where the contract provides that vendee is to re- ceive rents for several months before closing, it im- plies that he is to take subject to a lease.^" A three years' lease executed by an agent without written authority, being void under the statute, is no encumbrance, even though recorded;^^ § 416. Renewal. — The provision in a lease for re- newal may be regarded as part of the lease and its bene- fits pass to the purchaser on foreclosure of the original lease.^^ It has also been described as a covenant run- ning with the land.^^ It passes with an assignment of the lease." § 417. Consent. — A lease containing a provision forbidding transfer without the landlord's written con- sent and giving him the right to re-enter in case of vio- lation thereof, makes title in the tenant's vendee defeas- ible. The court will be liberal in relieving the vendee from such a title even when he has looked over the lease before purchase. ^^ 9. Matter of Coogan, 177 N. Y. 376, affg. Dresser v. Travis, 87 A. D. 632. 10. Page V. McDonnell, 55 N. Y. 299, affg. 46 How. Pr. 52. 11. Griffin v. Baust, 26 A. D. 553; Eeal Prop. Law, ^ 224, 259. 12. Holden v. Sackett, 12 Abb. Pr. 473. 13. Fruhauf v. Bendheim, 127 N. Y. 587, affg. 3 Silv. Supm. 91. 14. Downing v. Jones, 11 Daly, 245. 15. Roberts v. Geis, 2 Daly, 535. 288 License. Eeceipt of rent by the lessor after a transfer without such consent destroys the condition forever and makes consent unnecessary on a subsequent transfer.^^ Eeceipt of rent with knowledge that lessee has mort- gaged the lease, followed by failure to object to its sale on foreclosure and lessee's affidavit that lessor is will- ing to consent is sufficient evidence of readiness to con- sent to require the purchaser, in the absence of evi- dence to the contrary, to complete." The mortgage of a lease does not require lessor's con- sent, nor does a sale in foreclosure of such mortgage, since it is in hostility to the lessee.^^ § 418. Tenancies. — A lease described as expiring May 1, 1889, contained a privilege of renewal for two years. Such renewal term is an encumbrance justify- ing rejection of title; after specific reference to the lease, it cannot be included in a provision that the premises be taken " subject to existing tenancies'."^" A "monthly tenancy" does not mean an agreement for free occupation, where vendee is buying subject to such tenancies with the expectation of collecting rent.^" The remark by vendee that if the tenants were good he would like them to stay is mere loose talk not amounting to a waiver of existing leases as encum- brances.^^ 8. License. § 419. The lease of a wall for advertising until it should be so obstructed as not to be available was held 16. Murray v. Harway, 56 N. Y. 337. 17. Riggs V. Pursell, 66 N. Y. 193. It also appeared in this case that the landlord had hegun suit for rent. 18. Same; Dunlop v. Mulry, 83 Supp. 1104, affd. 85 A. D. 498. 19. Fruhauf v. Bendheim, 127 N. Y. 587, affg. 3 Silv. Supm. 91. 20. Toch V. Horowitz, 87 Supp. 455. 21. Guli V. West, 65 Hun, 1. Judgments. 289 not to be a contract nor to create an easement, but to constitute a mere revocable license. The court went on to remark that to hold such an agreement continuously enforcible in equity would be to encumber realty with a restriction which might defeat its sale and render title unmarketable.^^ 9. Lien. § 420. Judgments. — Generally. — A judgment duly docketed against the owner of the fee establishes a lieu which ordinarily renders title unmarketable.^ In the absence of objection it may on closing be satisfied out of the purchase price.^ The fact that the judgment is also a lien on other premises — apparently adequate in value to satisfy it — does not relieve the premises in question.^ Nor is the lien avoided by the owner's con- veyance after docket.* The judgment is a lien only upon real estate actually owned by the judgment-debtor at the time of the docket, and later; it does not attach to premises previ- ously conveyed, even though the deed was not recorded until after the judgment.^ A judgment against another person of the same name is naturally no defect in title.^ How serious a question it may raise has not been decided ; but it would seem to put upon the owner the duty of at least fur- nishing an affidavit, as is the custom under such cir- cumstances. A judgment discharged under the Insol- 22. Manheimer v. Gudat, 55 Misc. 330. 1. Towle V. Jones, 1 Robt. 87. 2. Egan v. Kieferdorf, 16 Misc. 385 (dictum). 3. Morris v. Mowatt, 2 Paige, 586. 4. Doody V. Hollwedel, 22 A. D. 456. 5. Russell V. Wales, 119 A. D. 536; Totten v. Stuyvesant, 3 Edw. 500, applied to an assignment for benefit of creditors. 6. Fagen v. Davison, 2 Duer, 153. 290 Judgments. vent Act,'' or otherwise unenforcible, is no encum- brance.* Where the conveyance had been set aside for fraud, judgments against the fraudulent grantee ceased to be liens.' § 421. Executors. — A judgment recovered against an e:^ecutor is no lien on decedent's real estate." The rule is the same when the real estate is held by the executor as personalty." § 422. Partners. — When real estate, though pur- chased with partnership funds for partnership pur- poses, is taken in the name of one member of the firm, and the evidence of the partnership transaction rests in parol, a judgment against the record owner clouds the title so as to render it unmarketable.^^ § 423. Lessee. — A judgment imposes no lien upon a lease for years under which the judgment-debtor never entered, having assigned it before possession was ta begin.^^ § 424. Remainderman. — A judgment against a vested remainderman imposes a lien on his estate in the prem- ises ; but if the remainder is subject to a power of sale, the lien of the judgment is, upon the exercise of such 7. Sebring v. Mersereau, 9 Cov7. 344, affg. 1 Hop. 501. 8. Totten v. Stuyvesant, 3 Edw. 500. The facts to which this ruling was applied are not stated. i 9. Colby V. Rowley, 4 Abb. Pr. 361. 10. Mayer v. McCune, 59 How. Pr. 78 (dictum) ; Holmes v. Bush, 35 Hun, 637. 11. Cook V. Ryan, 29 Hun, 249. 12. Moore v. Williams, 115 N. Y. 586, afifg. 55 Super. 116. 13. Crane v. O'Connor, 4 Edw. 409. Expiration. 291 power, transferred to the proceeds, and it ceases to affect title." § 425. Banks. — A judgment docketed against a bank^ after it has in liquidation gone into the possession of the superintendent of banks, has been pronounced no lien. Although there is no express provision in the Banking Law to that effect, the intent of the statute as a whole was construed to prevent such a preference being obtained among creditors.^' § 426. Suspension. -^K judgment suspended on appeal by the filing of a bond ceases to be a lien. This results from operation of the statute and applies to all real es- tate — after-acquired as well as then owned — which might be affected. M does not depend on the form of the order or the consent of sureties.^^ When a judgment is vacated with the provision that it continue to stand as security for any judgment the plaintiff may eventually obtain, an equitable lien is created for the debt itself; and the owner cannot con- vey marketable title. Such lien is not removed by an order after the second judgment suspending both judg- ments on appeal. The first judgment had already ceased to be a lien, nor was it merged in the second so as to destroy the lien of the debt." § 427. Expiration. — The lien of a judgment expires ten years after its docket as against a bona fide pur- chaser for value or encumbrancer. It is not saved by levy of an execution within that time under which no sale was made until after the ten years had expired.^* 14. Ackerman v. Gorton, 67 N. Y. 63. 15. Northern Bank of New York v. Drury, 152 A. D. 64; Lafsr- yette Trust Co. v. Beggs, 213 N. Y. 280. 16. Wronkow v. Oakley, 133 N. Y. 505, rvsg. 64 Hun, 217. 17. Holmes v. Bush, 35 Hun, 637. 18. Darling v. Littlejohn, 12 Supp. 205. 292 Taxes. § 428. Taxes. — In General. — Under a contract calling for a deed of conveyance in fee simple with covenant against grantor's acts only, vendee may object to unpaid taxes duly assessed against the premises.^ A tax is ordinarily a lien on the leasehold, under a lease for a long term, and if so it should be deducted from the purchase price on foreclosure.^ A tax lease is prima facie a cloud on the title, render- ing it unmarketable.* It may happen that a tax will merge on delivery of the deed, as when grantor conveys to the city which assessed the tax. In such case the tax does not impair marketability.^ § 429. Confirmation. — A tax does not become a lien until confirmed.^ Taxes which though assessed before the closing date are not confirmed until afterwards are not payable by vendor," either on private or on judi- cial sale.^ In New York City the tax becomes a lien on the actual issuance of the warrant.^ Under the Yonkers charter an error in the name of the owner does not invalidate the assessment.' § 430. Apportionment. — A tax is not in the same category with rents and interest; it is not subject to be 1. Penfield v. Clark, 62 Barb. 584; Story v. Conger, 36 N. Y. 673. 2. MoUer v. Duryea, 21 W. D. 459. 3. Herring v. Berrian, 55 Super. 110, affd. 107 N. Y. 632, without opinion. 4. James v. Mayor, 25 W. D. 214. 5. Lathers v. Keogh, 109 N. Y. 583. 6. English v. Ripley, 24 W. D. 153. 7. Equitable Life Assurance Soc. v. Toplitz, 69 Misc. 457. 8. Coudert v. Huerstel, 60 A. D. 83. 9. Odell V. Odell, 21 W. D. 90. Discharge on Closing. 293 apportioned on a time basis ^'' even on judicial sale.^^ Nor does a provision in a contract for title free and clear that all taxes, insurance premiums and water rates be adjusted on the closing date mean that taxes should be pro-rated; for if they were apportioned to vendee, tl^e premises would not be free and clear.^^ § 431. Re-assessment. — Under the system in vogue in Richmond County before 1898, state, county, village and school taxes assessed against a resident owner were collectible from the owner only; they did not be- come liens until re-assessed as against non-residents. As the time for re-assessment has passed they do not now affect real property.^* § 432. Release. — The state has the undoubted right to release a tax due to itself. The effect of a statute exempting from payment of inheritance tax property heretofore or hereafter devised to a bishop or religious corporation is to release a tax then accrued.^* It is also competent for the state to terminate by statute the lien of tax sale certificates and to cancel city. taxes and sales thereon made more than eigtt years previous upon which no leases had issued.^^ § 433. Discharge on Closing. — It is customary to discharge tax liens on closing out of the cash then pay- able; and a vendor is nOt in default simply because of 10. Lathers v. Keogh, 109 N. Y. 583, affg. 39 Hun, 576. 11. Equitable Life Assurance Soc. v. Toplitz, 69 Misc. 457. 12. Elwood V. Goldman, 158 A. D. 805. 13. Greenfield v. Beaver, 30 Misc. 366. 14. Eoman Catholic Church v. Niles, 86 Hun, 221. 15. Doody V. HoUwedel, 22 A. D. 456. 294 Taxes. the existence on the closing date of tax liens less in amount than the sum so payable.^^ Such liens are payable out of the purchase price in foreclosure; and they remain so payable after tax sale and the issue of certificates thereon." The vendor cannot impose on the vendee the duty of paying taxes." When the parties meet on the closing day and vendee makes proper tender, he may demand payment of tax liens; such demand is not met by an offer to allow same out of the purchase price, and if not complied with puts the vendor in default and makes him liable to an action at law for recovery of vendee's deposit.^* In foreclosure the judgment directed the referee to deduct the tax liens and the terms of sale provided that the purchaser should present claims for taxes paid by him and have them deducted from the purchase price. The purchaser having nevertheless paid the full amount of his bid to the referee now moves to compel the plaintiff in the action to pa-y the taxes. Held, granting the motion, that purchaser is entitled to rely on the referee 's carrying out the directions of the judgment, so that the premises shall be conveyed free fi'om tax liens.^" The municipality has no right to in- tervene and enforce such provision.^^ 16. Marsh v. Wyckoff, 10 Bosw. 202; Styles v. Blume, 12 Misc. 421, rvsg. 30 Supp. 409; Keitel v. Zimmermann, 19 Misc. 581; Ebert v. Hanneman, 69 Misc. 223. 17. Cornell v. Woodruff, 77 N. Y. 203. 18. Zorn v. MeParland, 11 Misc. 555, affg. 8 Misc. 126, affd. 155 N. Y. 684, without opinion ; Towle v. Jones, 1 Robt. 87, assessment. 19. Mandel v. Hess, 107 Supp. 766. The report of this case in the official series, 57 Misc. 240, contains several errors. Berger v. Crist, 121 A. D. 483. 20. Poughkeepsie Savings Bank v. Winn, 56 How. Pr. 368; Wich- man v. Aschpurwis, 55 Super. 218. 21. Morgan v. FuUerton, 9 A. D. 233. Assessments. 295 § 434. Accrual hetvyeen Sale and Closing. — In judi- cial sales title is determined as of the date of the sale. Taxes which become liens thereafter, though before the date fixed for delivery of the deed, are payable by the vendee.^^ It does not affect the rights of the parties that the notice erroneously stated tax liens as $1700, and a $1200 tax became a lien the week before the clos- ing date.^^ It has been held that a vendee who has accepted a deed of premises on which a tax had become a lien after the contract but before delivery of the deed has no cause of action on the contract.^^ § 435. Transfer Tax. — The transfer tax becomes a lien on premises of decedent ^° which is not discharged \)j a foreclosure sale.^^ It has been held that where the will directs equitable conversion, no lien attaches to the real estate.^^ § 436. Assessments. — In general. — The law of assess- ments is substantially the same as that of taxes. That an assessment duly levied is a lien hardly needs citation of authority.^* Whether in the absence of an express statute of limitations they are ever outlawed is held in Wood V. Squires, 3 T. & C. 468,^9 to be so doubtful as to 22. Coudert v. Huerstel, 60 A. D. 83; Crane v. Robinson, 19 Misc. 40 (dictum); Corbett v. Fleming, 122 Supp. 287; Ainslee V. Hicks, 13 A. D. 388, affd. 153 N. Y. 643, on opinion below. 23. Fletcher v. Realty Co., 152 A. D. 943. 24. Carr v. Roach, 2 Duer, 20. There is a dictum to the con- trary in Story v. Conger, 36 N. Y. 673. 25. Lese v. Lawson, 118 A. D. 254. 26. Kitching v. Shear, 26 Misc. 436. 27. Brown v. Lawrence Park Realty Co., 133 A. D. 753. 28. Elterman v. Hyman, 192 N. Y. 113. 29. Reversed, 60 N. Y. 191, on a point of procedure. 296 ~ Assessments. render title unmarketable. The youngest assessment in' that case was twenty-two years old. An outstanding assessment, though claimed to he in- valid, renders title unmarketable unless such assessment is beyond reasonable question void on its face.*" If such assessment is vacated after closing, vendee must pay vendor the balance of the purchase price retained for payment thereof; it is no answer that a subsequent as- sessment for the same improvement has since been con- firmed. ^-"^ When the assessment is for an improvement directed by unauthorized officials it is void on its face as a mat- ter of law and does not affect title.^^ A grading proceeding is separate from a street open- ing proceeding, and if regular in itself is not affected even by a jurisdictional defect in the opening proceed- ing.*^ § 437. Power of Government. — The legislature has power to fix the total amount to be collected for a pub- lic improvement, to designate the area of assessment and to apportion the tax among the properties bene- fited; if it also provides for notice to the persons af- fected and an opportunity to be heard, its action can- not be questioned.^* County supervisors authorizing an improvement may designate an assessment area and may also provide that the coramissioners shall assess the lands in their judgment to be ben- efited; if the supervisors do both, and a parcel of land within the area is omitted by the commissioners, the 30. Dyker Meadow Land etc. Co. v. Cook, 159 N. Y. 6, affg. 3 A. ' D. 164. 31. Lounsbury v. Potter, 37 Super. 57. 32. Chase v. Chase, 95 N. Y. 373. 33. City & County Contract Co. v. Bussing, 156 A. D. 315. 34. Lang v. Kiendl, 27 Hun, 66; Spencer v. Merchant, 100 N. Y. 585, affd. 125 U. S. 345. Apportionment. 297 validity of the assessment is so uncertain as to render unmarketable the titles affected.^^ § 438. Gonfirmation. — The chancellor held in 1840 that where property was subject to assessments which had not yet been confirmed and was offered in foreclos- ure free from encumbrances, assessments to be paid out of the purchase money, the terms were misleading and purchasers not knowing the exact situation would be relieved.*® A New York City assessment does not become a lien until the amount levied upon each particular parcel is determined by the apportionment made by the board of assessors.^'' Under the Brooklyn charter assessments for local im- provements preceded the execution of the work. As it cannot be supposed that the vendor intended to pay for unexpected improvements accruing wholly to the ven- dee 's benefit, the court will refuse to grant specific per- formance of a contract of sale, free from encumbrances, where such lien has attached between contract and closing.^* § 439. Apportionment. — Assessments are ordinarily apportioned so that the cost of the improvement is lev- ied proportionately among the properties benefited. The apportionment may be made by the legislature ; ^^ but is ordinarily attended to by a municipal board.^" 35. Dyker Meadow Land & Improvement Co. v. Cook, 159 N. Y. 6, affg. 3 A. D. 164. 36. Post V. Leet, 8 Paige, 337. 37. Harper v. Dowdney, 2 Silv. C. A. 222, affg. 47 Hun, 227. Tie ofBcial report, 113 N. Y. 644, is misleading. 38. Gotthelf v. Stranahan, 138 N. Y. 345. 39. Lang v. Kiendl, 27 Hun, 66. 40. Harper v. Dowdney, 2 Silv. C. A. 222; Dyker Meadow Co. V. Cook, 159 N. Y. 6. 298 Assessments. A further apportionment may be made when land subject to an assessment lien is subdivided and the owner of a subdivision seeks to discharge the lien on his particular parcel. Unless such apportionment is ac- tually made, the proportionate payment does not free any part of the premises from the lien; the result is merely to reduce the amount of the lien against the whole premises. In New York City the apportioning instrument must be signed by the comptroller.*^ A vendor who offered to deposit part of the purchase price to provide for the discharge of an assessment after apportionment was held in equity to have shown such willingness and ability to perform within a rea- sonable time as to defeat vendee's action for specific performance.*^ § 440. Accrual Between Sale and Closing. — In judi- cial sales title is determined as of the date of the salcv Assessments which become liens thereafter, though be- fore the date fixed for delivery of the deed, are payable by the vendee.*' § 441. Instalments.— Under the Laws of 1900, c. 307, a certain assessment was payable in five annual instal- ments. The vendee, under a contract for premises free from encumbrances, demanded payment of the entire assessment before conveyance. The court held the en- tire assessment a lien, but in view of the injustice of requiring the vendor to discharge it, refused specific performance.** 41. Rosenberg v. Freeman, 5 Supp. 891. 42. Greenspan v. Saladino, 126 A. D. 331. 43. Ainslee v. Hicks, 13 A. D. 388, affd. 153 A. D. 643, on opin- ion below. 44. Eiseman v. Josephthal, 71 Misc. 288. Open Mortgages. 299 § 442. Water Rents. — Overdue water rents create a lien which must be discharged in order to make title marketable.** An objection based on a |17 water rent is very technical and in equity is not available as against a vendee offering to perform.** Charges properly made by the water commissioner in New York City become a lien, not as of the date when the water is supplied, but when the charges are entered in the department's books.*'' The water commissioner, though authorized himself to instal water meters, has no authority to compel land owners to instal them. A lien for the meter arises only when the comptroller approves the city's bill for instal- lation.*8 § 443. Mortgages. — Open. — A contract provided for $2500 to be left on an existing mortgage; it was held no objection that there were two mortgages, together amounting to that sum, instead of one.^ Nor is it ob- jectionable that the mortgage by its terms matured at an earlier date, provided it has been duly extended.^ An open mortgage is an encumbrance rendering title unmarketable.^ If the action is at law, it is no answer to plead or prove that vendor was ready to have the mortgage discharged, especially where some difficulty has developed in procuring a discharge of record.* 45. Mandel v. Hess, 57 Misc. 240. 46. Pangburn v. Miles, 10 Abb. N. C. 42. 47. Mandel v. Weschler, 128 A. D. 505, afifd. 198 N. Y; 515. 48. Feder v. Rosenthal, 62 Misc. 610. 1. Greenfield v. Mills, 123 A. D. 43. 2. Scofleld V. Powers, 215 N. Y. 683. 3. Hasbrouck v. Tappen, 15 Johns. 200; Everitt v. Conklin, 90 N. Y. 645; and see Raben v. Risnikoff, 95 A. D. 68. 4. Zorn v. McParland, 11 Misc. 555; Carr v. Dooley, 19 Misc. 553. 300 Mortgages. Vendor is not required to remove the mortgage he- fore the closing date, and its existence is no excuse for non-payment of instalments of the purchase price.^ Nor does it justify rescission where vendee, with full knowledge, has taken possession and made payments after the closing date, even though he has not accepted a deed.^ On a judicial sale the mere existence of a mortgage is no ground for relieving the purchaser in advance; it will be assumed that the mortgage will be satisfied on closing.'' In general in equity the readiness of the vendor to procure satisfaction of the mortgage on clos- ing will entitle him to specific performance and defeat the technical objection of the vendee.^ Where the mortgage was kept alive at the instance of the vendee, he was required in Webster v. Kings County Trust Co., 145 N. Y. 275, to perform on being allowed a deduction from the price. Where the sale is "subject to mortgage," there can be no deduction.' A mortgage that has merged in the fee has ceased to be an encumbrance and need not be canceled of rec- ord." A mortgage executed after the filing of the lis pen- dens in partition may be disregarded on the partition sale.^^ 5. Ellis V. Hoskins, 14 Johns. 363 ; Greenby v. Cheevers, 9 Johns. 126; Shepman Mortgage, etc., Cpn. v. Sussman, 147 A. D. 25. 6. Caswell v. Black Eiver Cotton, etc., Co., 14 Johns. 453. 7. Herbert v. Smith, 6 Lans. 493 ; Sears v. Hyer, 1 Paige, 483. 8. Rinaldo v. Housmann, 1 Abb. N. C. 312 ; Keating v. Gunther, 10 Supp. 734; Keitel v. Zimmermann, 19 Misc. 581; Forsyth v. Leslie, 74 A. D. 517. 9. Hayward v. Wemple, No. 1, 152 A. D. 195. 10. Lynch v. Pfeiffer, 110 N. Y. 33. 11. Connor v. Connor, 20 Civ. Proc. 308; Sears v. Hyer, 1 Paige, 483. Ancient. 301 § 444. Ancient. — A mortgage more than twenty years overdue, though open of record, is presumed sat- isfied. Where additional facts indicating payment are proved by vendor, the apparent lien does not render title questionable. Such facts are the acquisition of the fee by mortgagee, where the mortgage is sixty-four years overdue ;^ a conveyance by the widow and execu- trix of the mortgagor, accompanied by inaction on the part of the mortgagee for sixty years ;^' an attempted release, where the period is thirty years;" the proof of mortgagor's will, with a twenty-six years period ;^^ an attempted satisfaction, with twenty-one years' quies- cence.^^ Still stronger is direct evidence, though not of record — as by affidavit " or testimony on the trial.^' Coniparatively slight circumstances to the contrary may offset the presumption, such as the recording of an old deed reciting the mortgage.^' In the absence of all evidence whatever the pre- sumption of payment is sufficient to render title mar- ketable. This has been frequently decided with refer- ence to widely different periods, as- — eighty-four years ;^'' eighty-two years ;^^ seventy-five years ;^^ sixty- eight years ;^^ sixty-six years ;^* fifty-six years ;^* 12. Greenfield v. Mills, 123 A. D. 4?. The opinion does not re- fer to the apparent merger. 13. Penfield v. James, 4 Hun, 668. 14. Lynch v. Pfeiffer, 110 N. Y. 33. 15. Dunham v. Minard, 4 Paige, 441. 16. Forbes v. Reynard, 113 A. D. 306. 17. Paget V. Melcher, 42 A. D. 76; Ouvrier v. Mahon, 117 A. D. 749. 18. Pangburn v. Miles, 10 Abb. N. C. 42. 19. Mead v. Mead, 5 Supp. 302. 20. Belmont v. O'Brien, 12 N. Y. 394. 21. Forsyth v. Leslie, 74 A. D. 517. 22. Ranger v. Yates, 207 N. Y. 698. 23. Belmont v. O'Brien, 12 N. Y. 394. 24. Katz V. Kaiser, 10 A. D. 137, affd. 154 N. Y. 294. 302 Mortgages. forty-nine years ;^® thirty-seven years ;^* thirty-two years ;^'' and as to anything over twenty years see opinion in Ouvrier v. Mahon, 117 A. D. 749. i It was formerly held that in the absence of evidence of payment it was proper for vendee to raise the ques- tion and refuse to complete — that if specific perform- ance was thereafter granted to the vendor, it would be without costs ;^^ but since the decision of the court of appeals on the almost identical facts presented by Don- nelly V. Wight, 192 N. Y. 561, that proposition may be doubted. It is certain at any rate that the vendee him- self may not under such circumstances compel specific performance.. § 445. Discharge. — The release of a first mortgage to a second mortgagee is a valid discharge.^' Where the mortgage is made to A and B as trustees for the benefit of creditors and is subsequently satisfied by them as trustees, it will in the absence of evidence to the contrary be presumed that they acted within their duty; they had the power to satisfy the mortgage, without the creditors ' consent, on receiving the sum of money secured by it.^° A satisfaction executed by a guardian by attorney in fact is valid, being a mere ministerial act.^^ A satisfaction executed by a stranger to the title, though recorded fourteen years ago, does not clear a mortgage seventeen years overdue.^^ 25. Donnelly v. Wight, 192 N. Y. 561. 26. Knapp v. Crane, 14 A. D. 120. 27. Williamsburgh Trust Co. v. Gottseh, 121 Supp. 890. 28. Pangburn v. Miles, 10 Abb. N. C. 42. 29. Lynch v. Pfeiffer, 110 N. Y. 33. 30. Bendheim v. Morrow, 73 Hun, 90, approved 158 N. Y. 729, ■without opinion. 31. Forbes v. Reynard, 113 A. D. 306. 32. Mahoney v. Allen, 18 Misc. 134. Teems. 303 § 446. Foreclosure Pending. — ^Where premises were sold at judicial sale subject to a first mortgage due in. eighteen months, the purchaser, in Bradley v. Leahy, 54 Hun, 390, was not required to complete when it developed that said mortgage was already under fore- closure. The same is true broadly of private sales, even where the mortgage was admittedly overdue and so described in the contract.^* § 447. Terms.^ — A contract for premises subject to a mortgage for $15,000 was construed in Wilmurt v. Mc- Grane, 16 A. D. 412, and held satisfactorily performed by conveyance subject to a $17,000 mortgage accom- panied by a certificate from the mortgagee that |2,000 had been paid on account of principal. The provision in a mortgage that on default in interest mortgagee may call same gives mortgagor no such right; there- fore vendor may not treat as matured a mortgage in default for interest only.** The amount of interest due on a prior mortgage may be adjusted for a foreclosure purchaser out of the price.'^ The time a mortgage has left to run is material. Pur- chaser may object that a mortgage is not payable at any time in his option, if so represented;*^ or he may object that it will mature several years before the date stated.*^ Where the stipulated period is only one year, and the legislature at its last session just adjourned enacted a comprehensive mortgage tax law, the contin- gency of same being changed within the year, so as to make the mortgage mature pursuant to a Brundage 33. WacM V. Hart, 120 A. D. 189, affd. 198 N. Y. 629, without opinion. 34. Carr v. Dooley, 19 Misc. 553. 35. Ebert v. Hanneman, 69 Misc. 223. 36. Berger v. Crist, 121 A. D. 483. 37. Schmidt v. Reed, 132 N. Y. 108, aSg. 58 Super. 570; Kruger V. Galewski, 13 Misc. 56, affg. 10 Misc. 233. 304 Mortgages. clause, is so remote as not to affect marketability.^' But this ruling does not apply to a period of three years ;^® nor to the Brundage clause in general, which under all but very exceptional circumstances is objec- tionable.^" Where the time for payment is not specified, the mortgage is payable on demand." § 448. Special Clauses. — Where vendee agrees to take subject to a mortgage, he may nevertheless object if the mortgage contains unusual clauses,*^ unless he is chargeable with notice of its contents.^^ The following provisions have been considered by the courts: — Payable in instalments, said obiter probably to jus- tify refusal to complete;** Payable in gold, held imma- terial ;** Assignment of rents, held unusual ;** Receiver, held unusual;*' Demolition of buildings, actual or threatened, held unusual;*^ Brundag6 clause, that on 38. Providing that on the enactment of any statute taxing same the mortgage shall mature; see next section. Frank v. Prank, 123 A. D. 802. 39. Schiff V. Taylor, 102 A. D. 42. 40. Oppenheim v. McGovern, 115 A. D. 135, afid. 189 N. Y. 572, ■without opinion. 41. Ranger v. Yates, 207 N. Y. 698. 42. Westown Realty Co. v. Keller, 143 A. D. 458. 43. Feltenstein v. Ernst, 49 Misc. 262, affd. 113 A. D. 903, with- out opinion; Feist v. Block, 115 A. D. 211. 44. Hugel V. Habel, 132 A. D. 327, rvsg. 56 Misc. 402. 45. Hartigan v. Smith, 19 A. D. 173; Blanck v. Sadlier, 153 N. Y. 551, affg. 5 A. D. 81. 46. Elterman v. Hyman, 192 N. Y. 113, rvsg. 117 A. D. 519. Apparently the appellate division attempted to reassert itself on the second trial of this case, 141 A. D. 208, remarking erroneously that these clauses did not render title' unmarketable. 47. Richards v. Washburn, 14 A. D. 237, approved 163 N. Y. 585, without opinion. 48. Elterman v. Hyman, 192 N. Y. 113; Westown Realty Co. v. Keller, 143 A. D. 458. Deed Intended as Mortgage. 305 any eliange in the tax law the additional burden be paid by the mortgagor and the mortgage immediately mature at mortgagee's option, held unusual;" Estoppel certificate, held unusual;^" Tax receipt, held unusual.^^ Such an objection may be waived,^^ and vendee who raises it is required to make strict tender, because the vendor if notified may be able to procure a modification of the mortgage.^^ § 449. Street Opening Award. — As against a subse- quent bona fide purchaser, street opening proceedings not of record decide nothing in regard to the validity of a mortgage open of record, or the ownership of same or of the fee.^' § 450. Deed, Intended as Mortgage. — A party alleg- ing that a deed absolute on its face is intended merely as a mortgage is required to prove his contention by very satisfactory evidence. The recital in a subsequent deed by two of the three grantees that the instrument was intended as a mortgage to their firm is not suffi- cient; it does not bind the heirs of the deceased grantee.^^ Where the record title is regular and the in- strument relied on to prove the deed from G to B a mortgage may also be interpreted as a mere option for G to repurchase, it will not, in the absence of other evi- dence, be held to throw any doubt on title derived 49. Same; Schifif v. Taylor, 104 A. D. 42; Oppenheim v. McGov- ern, 115 A. D. 135; Groden v. Jacobson, 129 A. D. 508; Feist v. Block, 115 A. D. 211 ; Rosenberg v. Levitt, 56 Misc. 695. 50. Same; Elterman v. Hyman, 119 N. Y. 113. 51. Westown Realty Co. v. Keller, 143 A. D. 458. 52. Rosenberg v. Feiering, 121 A. D. 190. 53. Rosenberg v. Jacobson, 56 Misc. 693. 54. Knapp v. Crane, 14 A. D. 120. 55. Schultz V. Rose, 67 How. Pr. 75. 306 MOETGAGES. through G's deed.^^ The claim in question may easily be made by parol; but public policy demands its sup- port by satisfactory evidence before it is allowed to afifect titles.^' Affidavits by parties interested to defeat the transaction as a conveyance, not stating when the intent arose to treat same as a mortgage, are too vague and indefinite to disturb title; the purchaser at fore- closure sale under a prior mortgage was compelled to complete in spite of such claim — though it would seem more equitable to order the claimants to be brought in and let them fight among themselves for the surplus.^^ The following facts were held to show convincingly an intent to mortgage only and not to convey: — C and S being indebted to H executed to him an instrument of conveyance absolute on its face and recorded with deeds; at the same time all three executed an instru- ment reciting such indebtedness and providing that H took the premises at a valuation as security, that C and S should retain possession and that H should account for the proceeds ; eleven years later the assignee of H 's executor recorded both instruments with mortgages and foreclosed against C and S. The foreclosure pur- chaser took marketable title.^^ ,^ A deed by G to D accompanied by a covenant by D to convey to H upon payment of $16,000 was construed as an equitable mortgage requiring foreclosure against H as well as D in order to clear title .^° § 451. Bond. — No bond is needed to validate a mort- gage; it is immaterial, therefore, if the execution of the bond is irregular.*^ 56. Braun v. VoUmer, 89 A. D. 43. 57. Wilson v. Parshall, 129 N. Y. 223 (dictum). 58. Griswold v. Fowler, 6 Abb. Pr. 113. 59. Kraemer v. Adelsberger, 122 N. Y. 467, rvsg. 55 Super. 246. 60. Dodd V. Neilson, 90 N. Y. 243, rvsg. 27 Hun, 102. 61. Roarty v. McDermott, 146 N. Y. 296. Municipal Liens. 307 § 452. Miscellaneous Liens. — In addition to mort- gages, judgments, taxes and assessments, discussed above, there are a variety of liens which may affect marketability. The more important ones which have been discussed in marketability cases are included in this subdivision; but the list here enumerated is not intended to be complete. There are also a number of obscure and temporary liens, created and abolished by statute from time to time, which in the examination of title must be guarded against. § 453. Mechanics' Liens. — Disaffirmance by an infant of certain transactions which took place during his minority does not cut off the mechanics' liens which accrued thereunder.^ § 454. Municipal Liens. — The construction of tene- ment houses is regulated in great detail by statute ; and the local authorities are empowered to enforce same by proceedings directly against the property. Refusal to accept a title against which the tenement house de- partment has filed a lis pendens cannot be called capri- cious or in bad faith. ^ Ordinarily tenement house vio- lations can be readily cured, as by waterproofing a water closet floor,^ adding a fire escape,* or making 1. Donath v. Germania Land Co., 25 Misc. 641. The infant had contracted to buy the premises from defendant. The latter con- veyed to the infant 's father, F, who gave a purchase money mort- gage and began building operations under which the liens accrued. The infant suing for specific performance is relegated to a money judgment; for, as the court says, the liens are certainly good as against defendant and F. But the effect of the decision is to make them good as against the land ; for otherwise the infant would take the land free and clear and the lien would be transferred to the proceeds. 2. Title Guarantee & Trust Co. v. Wesoliek, 115 A. D. 608. 3. Greenspan v. Saladino, 126 A. D. 331. 4. Weintraub v. Siegel, 133 A. D. 677. 308 Miscellaneous Liens. other slight alterations; and in such case may not in equity be used by vendee as an excuse for non-per- formance.^ But vendee is entitled to improved prem- ises in substantially the condition in which they were when he inspected them; and if the tenement house vio- lations could be cured only by removing washtubs and plumbing from the basement so as to render it unfit for occupation by a janitor, the change may be so se- rious as to relieve him from his purchase.^ The building department also has power to condemn a building as unsafe and to institute proceedings to compel its improvement or removal. Its lien for the cost of work done by itself in the emergency attached under chap. 625 of the Laws of 1871 only from the date of the filing of the lis pendens, was subject to prior lieiis and was cut off by foreclosure under an earlier lis pendens^ After the required improvements have been made by the owner, the cause of action abates and the department even without cancellation of the lis pen- dens loses its claim. There is no lien for search and survey except in case of final judgment in favor of the city.' Whether a board of health order to discontinue a cesspool is an encumbrance or violation is questioned but not decided in Reynolds v. Wynne, 121 A. D. 272. An agreement by the owner with the board of health not to build in violation of the law providing for light and air in tenements creates no encumbrance.* A municipality may by pledging specific real estate 5. Same; Sehreiber v. Elkin, 118 A. D. 244; Scofleld v. Powers, 215 N. Y. 683. 6. Westown Realty Co. v. Keller, 143 A. D. 458. 7. Mitchell V. Smith, 53 N. Y. 413. 8. Alpern v. Parrell, 133 A. D. 278. 9. Wilmurt v. McGrane, 16 A. D. 412. Testamentary Chaegbs. ' " 309 to the security of its bonds create a lien which cannot be vacated by legislation.^" § 455. Testamentary Charges. — The charge of debts on the real estate creates a lien lasting three years after the grant of letters. It is created by a devise " after all my debts are paid." ^^ The devisee can at all times convey, and after expiration of the lien can give marketable title. The charge of an annuity renders title unmarket- able. An inartificial will providing as follows was held to create such charge : — Devise of premises to J J and E B if both reach 21, or to the survivor; if both die without issue, to Lucy Bates; appointment of C C and G B C guardians of J J and E B, with power to collect rents and provision that they shall during the life of Lucy Bates pay her |100 a year, balance of rent to be paid to J J for the support of herself and E B.^^ A legacy is charged only by language in the will. In the absence of express words there must appear at least an expectation and intention that the realty should be used. The mere possibility that by bad man- agement ample personalty might be wasted before it was appropriated to the legacy does not create a charge.^^ Nor does the fact that the executor actually has so wasted the funds." Where testator left consid- erable realty, not specifically devised, and bequeathed nine legacies amounting to |57,000, but did not leave enough personalty to pay his debts, it was h'eld that, in the absence of language to show an intention that the 10. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, rvsg. 3 Lans. 429. 11. White V. Kane, 51 Super. 295. 12. Maurice v. Graham, 8 Paige, 483. 13. Wiltsie v. Shaw, 100 N. Y. 191, affg. 29 Hun, 195. 14. Hebron Society v. Schoen, 60 How. Pr. 185. 310 Miscellaneous Liens. legacies be paid solely out of personalty, the intent must be to give by the residuary clause only what was left after satisfaction of the previous provisions, and that -the legacies were thereby charged on the real ■estate.^^ § 456. Contract. — A valid outstanding contract of ■sale of itself creates no lien ; but it gives vendee a right of action for specific performance under which he may proceed against the land.^^ He may lose such right by laches ;" even after the beginning of such action and the filing of a Us pendens therein.^* The recording of such contract does not give constructive notice ; in spite of the record a bona fide purchaser will acquire title free from liability for specific performance.^' A contract to mortgage is on the same footing.^" A vendee may acquire a lien for earnest money and expenses. His rights and remedies are discussed in Chapter X. § 457. Tax Sale. — There can be no doubt that an unredeemed tax sale is an encumbrance justifying ven- dee in refusing to take title.^^ § 458. Auctioneer's Bond. — From 1897 to 1899 auc- tioneers were required to give bond to the city condi- tioned for the proper performance of their business; 15. Foster v. Civill, 20 Hun, 282. 16. Ford V. Belmont, 7 Robt. 97, affd. 7 Eobt. 508. 17. Johnson v. Duncan, 2 How. Pr. N. S. 366. 18. Hayes v. Nourse, 114 N. Y. 595. 19. Doll V. Ingram, 8 S. R. 253. 20. Jackson v. Bradhurst, 16 Misc. 149. The court implies ohiter that the Us pendens was a " lien;" but does not, like the reporter, oxplicitly say so. 21. Green v. Hernz, 2 A. D. 255, afEg. 14 Misc. 474. Covenants and Resteictions. 311 and the real estate of the obligors on such bonds was affected with a lien to secure same.^^ § 459. Condemnation. — The filing of an official map showing an area marked for condemnation does not impose any encumbrance upon the land so marked.^^ 10. Covenants and Restrictions. § 460. Creation. — The owner of a tract of land may sell parcels thereout and impose upon them restrictions attaching to the title. The mechanism usually em- ployed is a covenant on vendee 's part contained in the deed. When vfendor has limited certain lots so sold to be used for 4-story brown stone front single-family residences, and designated ■ the covenant as running with the land, such covenant is valid and continues to be an encumbrance even after the character of the neighborhood has changed.^ Such restriction may be imposed for the benefit of a neighboring third party ;^ but not for a third party having no proprietary right in the neighborhood at all.^ Whether or not it became operative under the following circumstances was held doubtful enough to render title unmarketable: — An agreement recited to be made by all the owners of three city blocks, and restricting the entire tract against apartments, provided that it should not become bind- ing unless all owners signed. One parcel was marked on an annexed diagram as belonging to B and he signed said agreement; but it was in fact owned by his wife 22. Strasbourger v. Falkenberg, 38 A. D. 627; Laws of 1897, c. 682, repealed in part by Laws of 1899, e. 239. 23. Warner v. Scbweitzer, 56 A. D. 623. See also Constitutional Law, § 39. 1. Doyle V. John B. Olson Realty Co., 132 A. D. 200. 2. Gibert v. Peteler, 38 N. Y. 165. 3. Wilmurt v. McGrane, 16 A. D. 412. 312 Covenants and Restrictions. N, who did not sign. The court suggests that plaintiff, as one of the other signers, may be bound by estoppel.* No covenant can be made by a mortgage to run with the land, nor imposed by a master in chancery's deed on foreclosure sale.^ A voluntary declaration by the record owner that he bought for Ws ultimate benefit and will convey on his request creates no estate or interest in land.^ So of a clause in a will devising to trustees to found a be- nevolent institution with the provision that the build- ings should be on lots Nos. 33 and 34; such provision is a mere declaration, ineffectual as a limitation.'' A conveyance subject to the restrictions of a certain statute, limiting the use of property adjoining a park, imposes no restriction unless the premises are within the district over which the statute by its own terms is made to apply.* A conveyance to a board of education, habendum to same, its successors and assigns for the uses and pur- poses of school district No. 10, on which to erect a school house for said district, forever, was held to cre- ate neither condition nor covenant.' § 461. Construction. — A question of first importance with any restrictive covenant in a deed is whether it runs with the land. The courts incline strongly to con- strue a covenant as personal, leaving the land unen- cumbered. In the abserice of mutuality or a well de- fined policy of developing a tract, even specific lan- guage will not always attach the covenant to the land. With party walls the element of mutuality is ordina- i. Altman v. McMillin, 115 A. D. 234. 5. Opinion, 2 City Ct. 396. 6. Ludlow V. Van Ness, 8 Bosw. 178. 7. DeVeaux College v. Highlands Land Co., 63 A. D. 461. 8. Title Guarantee & Trust Co. v. Fallon, 101 A. D. 187. 9. Board of Education v. Reilly, 71 A. D. 468. Personal. 313 rily present and the question turns on the phraseology of the particular agreement. The cases on that topic are collected and discussed below, § 466. § 462. Personal. — The owner of premises had coven- anted with X not to put a grist mill thereon. Such covenant was held not to affect title.^" A covenant in a deed that grantee shall not use the premises as a hotel is merely personal. ^^ An agreement between the owner and the board of health that no building shall be erected within two feet of the rear line, if valid at all, is also personal.^^ G, who owned three adjoining lots, conveyed one to W subject to the express condition that no building should be erected within 32 feet of the rear line. Neither W nor any subsequent owner repeated the con- dition and no necessity appears for keeping it alive. Held, merely a personal covenant.^^ M, who owned four adjoining lots on the northerly side of the street and property opposite thereto, con- veyed one of said lots to W by deed containing cove- nants against nuisances, against occupation except for residences for the period of fifteen years and against building within 16 ft. of the street. He repeated the same restrictions in the deed of one other lot, also sold to W, but neither he nor his executors inserted it in the conveyances of the remaining premises. Construing the set back clause, the court said that there were no reciprocal easements, no mutuality, nor any evidence of a general scheme to restrict, and hence the cove- nant was merely personal.^* , 10. Harsha v. Reid, 45 N. Y. 415. 11. Ennis v. Brown, 1 A. D. 22. 12. Wilmurt v. McGrane, 16 A. D. 412. 13. Krekeler v. Aulbach, 51 A. D. 591. 14. Schwoerer v. Leo, 39 Misc. 505, affd. 83 A. D. 643, on opinion below. 314 Covenants and Restrictions. The vacillating course of an owner, who by foreclos- ure and purchase reacquired title several times and in his various conveyances first restricted the premises by covenant to a 40 ft. set back, then when buildings had been erected up to six feet of the street line con- veyed without restriction, next conveyed with the re- striction of the existing line of the buildings erected, and still later when a church approaching in places to 3% ft. of the street had been erected on certain of said lots, conveyed others to B by deed containing a cove- nant said to run with the land providing for a 6 ft. set back, was held to have created personal covenants only. 15 § 463. Running with the Land. — A privilege of re- newal in a lease is a covenant running with the land.^® A covenant, for which the owner has received compen- sation, to fence along a railroad runs with the land." A covenant to pay taxes seems altogether inappropri- ate to fasten to title; but it was said at trial term to run with a tract in the Adirondacks.^* A covenant between the parties, their heirs and as- signs, connected with the subject of the grant and en- tering into its value, as not to build on a certain court- yard, runs with the land." Covenants entered into as part of a general scheme for developing a tract, as to restrict improvements to first-class residences, run with the land. As evidence of such scheme the following facts were held convinc- ing: — A statement on a map of the premises that such tract was "restricted, thus making it a first-class resi- 15. Gebhard v. Addison, 87 N. Y. 375. 16. Fruhauf v. Bendheim, 127 N. Y. 587, affg. 3 Silv. Supm. 91. 17. Blain v. Taylor, 19 Abb. Pr. 228. 18. Turner v. Walker, 40 Misc. 379. 19. Kahn v. Hoge, 61 A. D. 147. Effect. 315 dence locality;" express provisions in all deeds of lots that such covenants should run with the land; refer- ence in each deed to set back on various streets; other deeds by the owner providing that his property outside said tract should not be restricted.^" When several adjoining owners enter into an agree- ment restricting their premises against the sale of liquor, not to be binding upon any one unless all sign, such agreement becomes a covenant running with the respective plots in case all such owners do sign.^^ In 1786 the owner of a large tract contracted with settlers to pay for their improvements if they did not purchase. The settlers' claim was held to be a " great encumbrance on the title. ' ' ^- § 464. Effect. — The marketability test of a covenant or restriction running with the land is whether it im- poses on the premises restrictions more severe than are imposed by law on all land. Depreciation of value ie sufficient proof of the covenant's rendering title un- marketable; and even increase in value because of the covenant has been held not to prevent its being an objectionable encumbrance.^^ For the purpose of review the cases may be roughly grouped in accordance with the subject matter of the restriction, according as it relates to (1) nuisances, (2) dwellings, (3) structure, (4) space or (5) miscellane- ous. No hard and fast line can be drawn in such classi- fication, for the covenant may easily be closely related 20. McDougall v. Schneider, 134 A. D. 208. 21. Scudder v. Watt, 98 A. D. 228. 22. Osgood V. Franklin, 2 Johns. Ch. 1. It can hardly be doubted that such a covenant would to-day be construed as merely per- sonal. 23. Goodrich v. Pratt, 114 A. D. 771. It is not clear why such covenant does not come within the category of immaterial defects. 316 Covenants and Eestrictions. to several groups; as, for instance, one forbidding tene- ments is construed largely by the rules of nuisance, while obviously regulating the residential use of the premises. § 465. Nuisances. — That a covenant against nuisances in broad language is an encumbrance cannot be ques- tioned;^^ but that it therefore gives vendee a right to rescind the contract and recover damages, though ap- parently assumed in several cases, is a complete non sequitur. It is at most a prima facie injury in private sales ;^^ and probably not even that. When expressed in specific language, although it go no farther than the stereotyped restriction against stable, shanty, slaugh- ter house, tallovsr chandlery, bone boiling, smith shop, forge, furnace, brass foundry, nail or other iron foun- dry, and manufactory of glue, gas, varnish, vitriol, ink or turpentine, or for the tanning, dressing, repairing or keeping of skins, hides or leather, or for the storage of fat or petroleum, and any distillery or brewery, it may be shown to be a burden. A sale free and clear, fol- lowed by resale subject to such restriction for f825 less, is conclusive proof that the restriction diminishes value.^" The most carefully considered cases, with the sup- port of the court of appeals, hold that a general re- striction against nuisances is no burden, because it im- poses only such obligation as is imposed by law on all property.^' This rule was also applied to a covenant against a cemetery within a city,^^ and to a covenant 24. Van Derminden v. Essig, 2 City Ct. 38, 40 n.; Van Sehaick v. Lese, 31 Misc. 610, 615. 25. Scudder v. Watt, 98 A. D. 228. 26. Bay v. Adams, 44 A. D. 173, a%. 28 Misc. 664. 27. Opinion, 2 City Ct. 396; Clement v. Burtis, 121 N. Y. 708. 28. Floyd v. Clark, 7 Abb. N. C. 136. Nuisances. 317 like thie above enumerating the usual objectionable trades.^' The prohibition of "offensive" occupations extends beyond the common law restriction and by preventing the full and free enjoyment of the land becomes a bur- densome encumbrance.^" So of " nauseous ' ' business.^^ It is assumed in Church v. Standard Railroad Signal Co., 60 A. D. 613,^^ that a covenant prohibiting foun- dries and also manufactories for any noxious or dan- gerous business is objectionable; and so in Magee v. Palmer, 150 A. D. 356, of a covenant against stables. A covenant prohibiting the sale of liquors is prima facie injurious;'^ and a covenant against the use of steam power, by preventing the owner from installing steam elevators and heating, depreciates the value of the premises.^* Very little evidence is required to show that a spe- cific covenant against nuisances depreciates value.*^ The vendee, who intended to build a modern high grade apartment house on good residential property in New -York City, objected to a covenant against nui- sances imposed in 1873 in the usual specific form, pro- hibiting slaughter houses, etc., and also the following: — any depot, railroad stable, car, engine or tenement house or any other dangerous trade. It was held that this covenant covered only cheap, plain buildings for 29. Eiggs V. Pursell, 66 N. Y. 193. 30. Terry v. Westing, 5 Supp. 99 ; Dieterlen v. Miller, 114 A. D. 40; Heim v. Schwoerer, 115 A. D. .295, affg. 51 Misc. 97, affd. 187 N. Y. 543, without opinion. 31. Goodrich v. Pratt, 114 A. D. 771. 32. Evsg. 30 Misc. 261. See also Reynolds v. Cleary, 61 Hun, 590, to the same effect. 33. Scudder v. Watt, 98 A. D. 228. 34. Van Schaick v. Lese, 31 Misc. 610. A highly technical con- struction of the covenant. 35. Conlen v. Rizer, No. 1, 109 A. D. 537. 318 Covenants and Restrictions. numerous families, such as were popularly termed "tenements" in 1873, and would be deleterious to a res- idential neighborhood; and that it did not prevent an apartment house of the character intended.^^ § 466. Dwellings. — A covenant restricting premises to dwellings or to use not inconsistent with private res- idence is an encumbrance rendering title unmarket- able.3' So of a covenant prohibiting apartments.^* A covenant providing that grantee shall not erect upon the rear of the lots conveyed any building to be used as a dwelling was construed to prohibit rear tene- ments only, and not to prevent a tenement house fronting on the street and running back substantially the full depth of the lot.^' The contract provided that the premises should be free from encumbrances ' ' except existing covenants as to nuisances, if any, which do not, however, prevent the erection of stores or tenement houses." A cove- nant against nuisances providing further that no buildings less than two stories high, or without cellar, or costing less than |2500, should be erected on the premises, was held to exceed the scope of nuisance cov- enants.*" The Murray Hill restriction excludes ' ' any building or erection other than brick or stone dwelling houses 36. White v. Collins Buildjng & Construction Co., 82 A. D. 1. See also J 466. 37. Eeynoids v. Cleary, '61 Hun, 590; Kountze v. Helmuth, 67 Hun, 343, affd. 140 N. Y. 432; McDougall v. Schneider, 134 A. D. 208; Thornton Brothers Co. v. Tully Construction Co., 160 A. D. 171. 38. Altman v. McMillin, 115 A. D. 234. 39. Schumacher v. Reichardt, 2 City Ct. 341. 40. Levin v. Hill, 117 A. D. 472, aSd. 193 N. Y. 621, without opinion. Steuctuee. 319 * * * and except churches and stables of brick or stone for private dwellings." This does not prevent apartment houses. An apartment house is a "dwell- ing," said the court of appeals; and th6 word is too plain and unambiguous to permit evidence of its mean- ing.^i § 467. Structure. — A party wall covenant running with the land and requiring the owner to share the (expense of repairing or rebuilding is an encumbrance that impairs title.*^ When such covenant provides that the adjoining owners shall share such expense and is stated to run with the land, it is construed as perpet- ual,^^ and enures to the benefit of the mortgagee with- out whose consent it cannot be released. A contract describing the northerly wall as a party wall called for title free from encumbrances and gave dimensions which included the entire southerly wall. It was held clearly implied that the southerly wall should not be a party wall, that inspection would dis- close no easement, and that a covenant stated to run with the land and providing that the wall when rebuilt should be in the same place, of the same size and of similar material and its expense shared by the adjoin- ing owner was a perpetual encumbrance which might seriously embarrass the owner in the future.** A covenant for a party wall "to remain in force so 41. Eeformed Protestant Dutch Chureli v. Madison Avenue Building Co., 214 N. Y. 268, affg. South Church v. Madison Ave. Bldg. Co., 163 A. D. 359. 42. Corn v. Bass, 43 A. D. 53; Finck v. Bauer, 40 Misc. 218; Oppenheimer v. Knepper Realty Co., 50 Misc. 186. 43. Maupai v. Jackson, 139 A. D. 524, affg. 64 Misc. 407. It is not clear on what ground special term held the covenant personal in Morrison v. Bauer, 26 W. D. 40. 44. O'Neil v. Van Tassel, 137 N. Y. 297. 320 Covenants and Resteictions. long as the parties continue to have title ' ' is obviously personal.^" It is suggested in Leinhardt v. Kalcheim, 39 Misc. 308, that the absence of ' ' privity of estate ' ' would pre- vent adjoining owners from imposing on their lands a mutual covenant ralating to foundations. Why there should be any distinction in this respect between foun- dations and walls is not clear; nor is it apparent that an agreement to shore and underpin a neighbor 's house in case of excavating below the foundation imposes any greater burden than is imposed by law. The ease is not convincing and probably has not fixed the law. § 468. Space. — A covenant providing that the front five feet of the lot shall not be built upon renders title unmarketable.*^ The right to use such space for steps and rails does not remove the burden.*^ An agreement made in 1859 provided that certain lots on 70th St., between 3rd and 4th Avs., and on the corner of 4th Av., should set back 10 ft. from the ' building line, this agreement not to apply to lots on the corner of any intersecting avenue. In 1869 Lexing- ton Av. was opened and the owner, having turned the lots to front thereon, sold them without restriction. It was held that the covenant contemplated such an avenue and did not intend to limit lots fronting thereon.** Vendee has the burden of showing that such restric- tion impairs the value of the premises. In the absence of an allegation to that effect, the encumbrance will be 45. Kahn v. Mount, 46 A. D. 84. 46. Matter of Whitlock, 32 Barb. 48; Kountze v. Helmuth, 67 Hun, 343, affd. 140 N. Y. 432. See also Gebhard v. Addison, 87 A. D. 375; Schwoerer v. Leo, 39 Misc. 505. 47. Roussel v. Lux, 39 Misc. 508. 48. Halstead v. Atterbury, 105 A. D. 527. Extinguishment, 321 disregarded as immaterial.*^ Vendor's attempt to prove that a 12 ft. set back enhanced the value of the premises was held in Wetmore v.- Bruce, 118 N. Y. 319,^" to have failed. A covenant prohibiting building upon a certain por- tion of the premises in order to provide light and air for a structure upon the remainder thereof or upon adjoining premises is valid whether it create a court- yard ^^ or a light shaf t/^ or merely protect the view.^^ § 469. Miscellaneous. — An agreement with a railroad which has paid therefor to maintain a substan- tial fence along the right of way is a perpetual burden.^* But where the expense of maintaining the fence provided for would amount to only fifty cents a year, the encumbrance will be disregarded as trivial.''^ A pre-emptive right of purchase, under the old Van Eensselaer leases, was held a serious restriction.^" § 470. Extinguishment. — An encumbrance may be automatically extinguished by its own terms; as where a Livingston Manor conveyance reserved the right to the grantor to cut timber and graze in the woods not appropriated or fenced in, such right ceased to exist when the grantee fenced his premises. It may also be abandoned and perhaps will be presumed to have been extinguished by mutual consent after it has been dis- 49. Riggs V. Pursell, 66 N. Y. 193. 50. Affg. 54 Super. 149. 51. Kahn v. Hoge, 61 A. D. 147. 52. Conlen v. Rizer, No. 2, 110 A. D. 887. 53. Gibert v. Peteler, 38 N. Y. 165. 54. Blain v. Taylor, 19 Abb. Pr. 228, citing Laws of 1854, chap. 282. 55. Keating v. Gunther, 10 Supp. 734, affd. 129 N. Y. 659, with- out opinion. 56. Winne v. Reynolds, 6 Paige, 407. 322 Covenants and Restrictions. regarded for sixty or one hundred years. So held of a quit rent in the same conveyance.^^ Where a large tract is restricted, the restrictions are intended for and enure to the benefit of the several lot' ■ owners, their mortgagees and successors in interest. Neither the original grantor nor any single lot owner can thereafter release the easement or extinguish it by mortgaging without covenant.^^' A reservation by the original grantor of the right to release individual lots is so unusual and unfair that a purchaser will not be held to his contract unless he clearly understood the situation when he signed.^' A party wall covenant cannot be extinguished with- ' out the consent of the mortgagee of the dominant tene- ment.^"* The owner of the dominant tenement is estopped from enforcing a covenant when he has accepted the benefit of a violation of a reciprocal easement there- under.*^ When title to the dominant and servient tenements unites in the same person, the easement merges and disappears.*^ A covenant created subsequent to a power of sale is extinguished by the exercise of such power. The lat- ter relates back to the time when the instrument creat- ing it became operative.*^ 57. Ten Broeck v. Livingston, 1 Johns. Ch. 357. 58. Raynor v. Lyon, 46 Hun, 227. 59. Sohns v. Beavis, 200 N. Y. 268, affg. 133 A. D. 717. 60. Maupai v. Jackson, 139 A. D. 524, affg. 64 Misc. 407. 61. Magee v. Palmer, 150 A. D. 356. In this ease restrictions, were imposed on lots 180 and 182 for mutual benefit. C having accepted a deed of 182 free and clear could not enforce such, restrictions on 180. 62. Schwoerer v. Leo, 39 Misc. 505, affd. 83 A. D. 643, on opinion below; Halstead v. Atterbury, 105 A. D. 527. 63. Haas v. Kuhn, 67 Hun, 435. Extinguishment. 323 A purchase money mortgage is paramount to any coven? nt attempted to be imposed by the mortgagor, even though it attached by virtue of an agreement made prior to his purchase of the premises in ques- tion.^^ Where the owners of several lots unite in a restrictive covenant, and one of said lots is sold free and clear under foreclosure of a mortgage made before such covenant, the other lots are not thereby released.^^ § 471. Change of Neighhorhood. — In rapidly grow- ing American cities it frequently happens that a coven- ant running with the land and restricting same perpetu- ally to residential or other purposes becomes so inap- propriate to a changed neighborhood that it would work great injury to an owner to enforce it. The ques- tion then arises whether it impairs title or may be dis- regarded. It is rather vaguely suggested in Reynolds V. Cleary, 61 Hun, 590, that a covenant which had be- come so far obsolete that equity would no longer en- force it would be considered no defect; but the only case in which a decision actually followed that rule is Bogardus v. Caragher, 58 Super. 577, where a covenant to build a wharf and keep same and the streets along the river in repair was disregarded a century later when the city had extended eastward leaving the prem- ises several blocks inward from the river front. The rule is clearly established by weight of authority that even though the covenants would not be enforced and though damages would be only nominal, a pur- chaser will not be compelled to take with the liability of an action for damages impending.^^ 64. Crocker v. Gollner, 20 Supp. 17 (dictum). 65. Scudder v. Watt, 98 A. D. 228. 66. Tourth Presbyterian Church v. Steiner, 79 Hun, 314; Eckel V. Spitzer, 58 Misc. 467; Doyle v. John E. Olson Realty Co., 132 A. D. 200 (dictum). 324 Conditions. A vendee may not object because neighbors subject to the same restriction have violated same, as by build- ing within the set back limits; such violations are no defect in the title tendered to vendee.^'^ 11. Conditions. § 472. Precedent. — A conveyance by C to T accom- panied by an agreement executed by T to reconvey to on payment by him of fl200 within six months is a conditional sale and not a mortgage.^ § 473. Subsequent. — Creation. — A. covenant by grantee that he, his heirs and assigns will not erect a certain character of building on the premises, with the provision that the premises shall be forfeited in case of breach, creates a condition subse- quent.^ So of a deed conveying on the express condi- tion that if the premises be used in any manner pro- hibited the grant should be void and the premises revert to grantor, his heirs and assigns.^ Also a pro- vision that if devisee rejoin her husband, her estate in the premises shall terminate and vest in testator's ex- ecutors in trust.* While no particular form of words is required to create a condition subsequent, it is seldom that the effect of a condition is given to words so scanty and general as the following :— Grantee covenants " as one of the terms and conditions upon which this convey- 67. Mead v. Martens, 21 A. D. 134, affd. 162 N. Y. 626, without opinion. 1. Morrison v. Brand, 5 Daly, 40. 2. Gibert v. Peteler, 38 N. Y. 165, approving 38 Barb. 488. 3. Van Schaick v. Lese, 31 Misc. 610. 4. Wright V. Mayer, 47 A. D. 604. The reverter in this case was not reserved to grantor and heirs. Condition Subsequent. 325 ance is made, ' ' not to erect certain buildings. It lias been done, however.^ A deed made subject to the express condition that no building be erected within 32 feet of the rear line was construed as containing a covenant only;'' and a similarly worded provision in regard to nuisances was also construed as a covenant.' A devise provided that said lots shall constitute the farm and domain of said institution. This was held to be declaratory merely.^ A provision for re-entry is regarded in some recent cases as almost essential for the creation of a condition subsequent.^ There must also be some land left to the grantor in the neighborhood to which the possibility of reverter can attach.^** The following strong language was construed in Post V. Weil, 115 N. Y. 361, as creating a covenant only: — Grant to M, habendum "Provided always, and these presents are upon this express condition, that the afore- said premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind." ^^ 5. Anonymous, 2 Abb. N. C. 56. 6. Krekeler v. Aulbach, 51 A. D. 91, affd. 169 N. Y. 372, on other grounds. 7. Clement v. Burtis, 121 N. Y. 708. 8. De Veaux College v. Highland Land Co., 63 A. D. 461. 9. Zweig V. Sweedler, 140 A. D. 319, stating that the courts, ■whenever possible avoid a condition subsequent. 10. Richter v. Distelhurst, 116 A. D. 269. The court also says that there was no one to enforce the condition in that case; but it did not appear that the executors were out of office. 11. Reported on first trial, 8 Hun, 418. All live judges of the supreme court who passed upon this case regarded the deed as creating a condition subsequent. 326 Escrow. § 474. Effect. — That a title subject to a conditioii subsequent is not marketable is beyond dispute. When the question first arose it was apparently considered debatable for it was discussed at length ;^^ but later cases have dismissed it briefly .^^ § 475. Extinguishment. — The possibility of reverter is extinguished by the original grantor's conveyance of the same premises without restriction.^* The condition may be released by grantor ;^^ or by all his heirs, but not by less than all.^^ Whether an ex- ecutor, having created such condition, can release it is held to be a matter of doubt." 12. Escrow. § 476. A deed placed in escrow takes effect as of the date of the first delivery. The intervening death of the grantor does not defeat it.^^ The vendor executed deeds of the premises and ten- dered same to vendee who objected to the title. Vendor thereupon brought this action of specific performance wherein the deeds were put in evidence. The court now decides that it holds said deeds in escrow, and despite grantor's death it directs vendee to accept them.^' 12. Anonymous, 2 Abb. N. C. 56. 13. Knee v. Kuykendall, 6 S. R. 1; Wright v. Mayer, 47 A. D. 604; Van Schaick v. Lese, 31 Misc. 610. 14. Berenbroiek v. St. Luke's Hospital, 23 A. D. 339, app. disd. 155 N. Y. 655, adding ohiter that it is also extinguished by his attempt to assign it. 15. Post V. Bernheimer, 31 Hun, 247. 16. Van Schaick v. Lese, 31 Misc. 610. 17. Knee v. Kuykendall, 6 S. R. 1. 18. Campbell v. Morgan, 68 Hun, 490; Webster v. Kings County Trust Co., 145 N. Y. 275, affg. 80 Hun, 420; Faile v. Crawford, 34 A. D. 278. 19. Faile v. Crawford, 34 A. D. 278. Encroachments. 327 13. Encroachments. § 477. Effect. — ^A question of encroachment does not involve title within the meaning of the Municipal Court Act;^ nor does it put vendor in a position to de- mand a jury trial when sued for specific performance.^ Where vendor contracts to convey free from encum- brance, and the wall of his building encroaches on the adjoining premises, he can fulfill his contract by a deed of his own premises accompanied by written permis- sion from his neighbor for the wall to remain; an en- croachment on X's land is no encumbrance on A's.^ Vendee will not be permitted to raise an unsubstantial claim of encroachment as an excuse for not closing on time and later to enforce the contract against ven- dor's protest.* Many of the nice questions which formerly cropped up to worry landowners have vanished under the be- nign influence of recent legislation. By chapter 517 of the Laws of 1898,^ owners of land on which the wall of a building encroaches not exceeding 6 inches are re- quired to make their objection within a year from the completion of the wall or else submit to the encroach- ment. The cases discussed in this section should be read with this statute in mind. § 478. Test. — The question usually raised by an en- croachment is that of its materiality. The answer de- pends in part upon whether the issue is adjudicated at law or in equity and in part upon whether the en- croachment is by the vendor or upon his premises. 1. Elinsky v. Berger, 87 A. D. 584; Laws of 1902, c. 580. 2. Krasnow v. Topp, 128 A. D. 156. 3. Eastman v. Home, 141 A. D. 12, affd. 205 N. Y. 486. 4. Klingenstein v. Alexander, 57 Misc. 236. 5. Amending Code Civ. Proc, 5 1499. 328 Encroachments. "Where the encroachment is extremely slight, as a 5 in. projection of binders in a foundation chipped off be- fore trial at an expense of |8, the objection comes within the rule of de minimis non curat lex, and even at law will be wholly disregarded.* It is doubtless on this ground that the court considered bay window and stoop ledge encroachments as insufficient to justify rejection of title in Hough v. Baldwin, 50 Misc. 546. As a general proposition such a statement should be confined to equitable actions, where compensation can be made; for at law the vendee is strictly entitled to receive marketable title to the entire premises.' Where the encroachment is on the adjoining land, the vendee of a plot with the buildings thereon erected gets what he bargained for if the buildings have an easement of support;^ or a right to maintain the en- croaching walls during the life of the buildings.^ The danger of interference by one's neighbor is reduced to a minimum by the statutory protection already men- tioned to a slightly encroaching wall which has stood for a year. Where it becomes apparent that the year will necessarily expire as against all persons who could object, the purchaser is protected.^" Architectural or- naments projecting over a neighbor's line may be con- sidered as maintained merely by courtesy, and do not affect the title of either party .^ 6. Geffln v. Schneidler, 105 Supp. 1035, affd. 118 A. D. 907. with- out opinion. 7. Place V. Dudley, 41 A. D. 540; Stokes v. Johnson, 57 N. Y. 673; Wilhelm v. Tedergreen, 2 A. D. 483; Stevenson v. Fox, 40 A. D. 354. 8. German- American Co. v. Meyers, 32 A. D. 41 ; Merges v. Eing- ler, 34 A. D. 415. 9. Volz V. Steiner, 67 A. D. 504. 10. Same; Code Civ. Proc, § 1499. 11. Van Horn v. Stuyvesant, 50 Misc. 432. Test. 329 Where the encroachment is on a public street, courts have varied from the rule in Beyer v. Marks, 2 Swee- ny, 715 — that it cannot be assumed that the city will remain dormant and the burden is on vendor to show that the gore occupied by the encroachment is not ma- terial to the fulfillment of his contract — to the rule in Harrison v. Piatt, 35 A. D. 553 ^^ — that the burden is on the vendee to show that title to such gore is in the city and that the encroachment projects beyond the limit protected by the statute.^^ Where the encroachment is on vendor's premises and is slight in character, easy of correction and ad- mittedly without authority, it is no defect in title." A court of equity will look into the object and induce- ment of the purchaser and the merits and justice of each case. The test is whether it seriously interferes with the use and enjoyment of the premises.^^ In the absence of evidence that an encroachment of % in. on a plot with a frontage of 159 ft., or even 125 ft, affects the value, such an encroachment will be disregarded.^® Whether an ostensible party wall was constructed under a covenant running with the land may be un- necessary to decide when the wall is physically in ex- istence, for as vendor has no right to use it unless such covenant exists, the premises are encumbered in either 12. Affd. 158 N. Y. 712, on opinion below. 13. Laws of 1896, c. 610. 14. Coates v. Fairchild, 14 W. D. 189, affd. 89 N. Y. 631, on opinion below; Van Horn v. Stuyvesant, 50 Misc. 432. 15. Ungrich v. Sehaff, 119 A. D. 843. 16. Merges v. Eingler, 34 A. D. 415. 17. Conlen v. Eizer, No. 2, 110 A. D. 887. 330 Enceoachments, § 479. Survey. — Where surveyors disagree about a trifling encroachment, the court will not be eager to find title defective.^* Whether judicial sale "subject to survey" justifies an encroachment by walls not mentioned in the terms of sale may be considered an open question. March v. Marasco, 165 A. D. 348, obiter pronounces such en- croachment unobjectionable, but Ely v. Mathews, 58 Misc. 365, holds that they make title unmarketable. Where vendor agreed to convey a title that certain companies would "insure, in addition to a marketable title as defined under the laws of the State of New York, ' ' he was held not to have tendered insurable title nnder the following facts: — A survey made by one of said companies ' surveyors showed five small encroach- ments; on the trial plaintiff produced a survey by R showing no encroachment and one by T showing en- croachments of 1% in. on the street and 1% in. by the adjoining building over plaintiff's rear line.^^ § 480. Extent. — Trifling. — A slight encroachment by a neighbor on the rear of a city lot — such as 2 in.;^* 4% in.;^^ "a few inches" -" — will not prevent the en- forcement of the contract. The trifling detriment to value will be compensated out of the purchase price. On the side lines the rule is the same, though the arithmetic is not always so obvious. One half an inch in 125 ft. is prima facie immaterial.^^ In vacant lots with a frontage of 75 ft., a 14 in. encroachment was 18. Sasserath v. Metzger, 30 Abb. N. C. 407; Merges v. Ringler, 34 A. D. 415. 19. Beinhauer v. Morris, 142 A. D. 398. The court remarks obiter that plaintiff's title was marketable. 20. Bloomgarden v. Hoffman, 112 A. D. 887. 21. Sauter v. Frank, 67 Misc. 657. 22. Weintraub v. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246. 23. Merges v. Ringler, 34 A. D. 415. Extent. 331 disregarded on the ground tliat as it represented only |70 out of 14500 it was evidently not important.^* Such an inference is a question of fact for the jury, where the action is tried at law; an encroachment of only iy2 in. on a 75 ft. frontage cannot be held imma- terial as a matter of law.^^ In Keitel v. Zimmerman, 19 Misc. 581, at law, it was said that an encroachment of vendor's building % in. on the adjoining lot was too trifling to object to.^^ It seems now settled by Macdonald v. Bach, 51 A. D. 549," that such an encroachment to the extent of about % in. Is within the rule of de minimis non curat lex, for the court of appeals affirmed judgment for specific per- formance without compensation, saying that no court would compel the owner to remove such a wall or allow damages for such an encroachment. Where vendor's building has for many years en- croached slightly upon the street, the courts have not attached much importance to the objection. An en- croachment of % in. after 55 years was held immate- rial.^^ A slight projection which though visible on in- spection has stood 20 years without molestation — such as a water table projecting 5 in. and door posts 1 ft. 3 in. — is " a very technical objection. ' ' ^^ § 481. Material. — More serious are the following: — An encroachment of 1 ft. 2 in. by a neighbor's house over the rear line of a city lot;^" on the side line, (1) 24. Kelly v. Brower, 7 Supp. 752. 25. Place v. Dudley, 41 A. D. 540. 26. See Smithei^ v. Steiner, 13 Misc. 517. 27. AfiEd. 169 N. Y. 615, on opinion below. 28. Katz V. Kaiser, 10 A. D. 137, affd. 154 N. Y. 294. 29. Webster v. Kings Co. Trust Co., 145 N. Y. 275 (dictum). 30. Kountze v. Helmuth, 67 Hun, 343, affd. 140 N. Y. 432, at law. The court did not decide whether it was fatal. 332 Encroachments. irregular, from 10 in. in front to a maximum of 16 in. ' and a minimum of 2 in., 60 ft. deep;*^ (2) 3 in. in front to 11/2 in rear, 36 ft. deep;*^ (3) 1 in. to 31/2 in.^^ Where vendor's building and the adjoining building both slant across the line, each encroaching part way upon the other's premises, the courts have in actions at law construed the vendor's obligation strictly. Such encroachments varying from I/2 iii- to 3 in. entitle ven- dee to recover.^* On the street an encroachment of 2% in. to 3% in. was held to make title unmarketable;^^ also a projec- tion of 1 ft.3« In Klim v. Sachs, 102 A. D. 44, the court declined to decide whether such encroachment, 1% in. to 5 in. was material. Where vendor's buildings encroach on his neighbor's premises on three sides of the lot, — 1 in. for 20 ft., between 2 in. and 3 in. for 50 ft. and 2 in. for 45 ft. — the defect in title is sufficient to relieve a purchaser at judicial sale.*^ A side-line encroachment of 3% in. makes title unmarketable;** and even 2 in.** In such case if vendor offers a release to cure the defect, he must prove that it does so.^" When vendee proves that the building encroaches between % in. and 5 in. be- 31. King V. Knapp, 66 Barb. 225. 32. Reynolds v. Wynne, 121 A. D. 272. 33. Klim V. Sachs, 102 A. D. 44. 34. Wilhelm v. Federgreen, 2 A. D. 483, affd. 157 N. Y. 713, on opinion below; Stevenson v. Fox, 40 A. D. 354, affd. 167 N. Y. 599, without opinion. 35. Smithers v. Steiner, 13 Misc. 517. 36. Heymann v. Steich, 134 A. D. 176, affd. 201 N. Y. 578, with- out opinion. 37. Moser v. Ellis, 106 Supp. 1075. 38. Egan v. Kieferdorf, 16 Misc. 385. 39. Snow V. Monk, 81 A. D. 206; Arnstein' v. Burroughs, 27 Supp. 958. 40. Arnstein v. Burroughs, 27 Supp. 958. Common Ownership. 333 yond the rear lot line, he does not have to prove fur- ther that vendor has no title to the affected strip.*^ It is not sufficient for vendor to show that his building has stood 4 in. to 6 in. over the westerly line for 9 years; that period does not establish a practical loca- tion.*^ That the structure has stood 2% in. over the line for 23 years does not make title marketable ; where vendor's proof goes no farther, the court will direct a verdict for vendee.^ § 482. Common Ownership. — Where two city lots, on one of which stood a house, were sold together under foreclosure as one parcel, the purchaser objected that his plan for improving the vacant lot was interfered with by a 20 in. encroachment of the house. On refer- ence as to title the master found the title of the entire parcel good, and declined to report on the encroach- ment. The court sustained this view, holding that there was no material defect or variation from the de- scription at the sale; but as the notice stated that the house stood on lot No. 42, the purchaser was entitled to compensation for the deficiency, if any, in value." As a general rule if the two lots have been in com- mon ownership since the construction of the building, the lot on which the building is principally erected ac- quires an easement in the adjoining lot for its support which removes all doubt about the title.^^ This rule seems to have been overlooked in Eankin v. Clement, 194 N. Y. 535. In Meadows v. Michel, 144 A. D. 927,''« 41. Steckler v. Godillot, 17 Misc. 286. 42. Nolan v. Earned, 13 A. D. 155. 43. Miner v. Hilton, 15 A. D. 55. 44. King V. Bardean, 6 Johns. Ch. 38. 45. Katz V. Kaiser, 154 N. Y. 294, affg. 10 A. D. 137; Griffin v. Banst, 26 A. D. 553. 46. Appeal dismissed, 204 N. Y. 585. 334 Enceoachments. also, it was ignored on the second trial, though recog- nized on the first." As no opinion is reported in either of these cases, perhaps the rule is not seriously im- paired. § 483. Street. — The encroachment of a building into the street is open to objection by the municipality and by the adjoining owners. In New York City the mu- nicipality allowed its sidewalks to be absorbed by abut- ters to an extraordinary extent, and its inaction up to a very recent date was judicially noticed by the courts and relied on by them as a policy permanent enough to establish a rule of property. Even so startling an en- croachment as fifteen feet was held immaterial on this ground. The contingency of its being ordered removed is so remote, said the appellate division, as not to be within reasonable contemplation.** Since the recent change of city policy this decision may be regarded as obsolete.*' The opinion in Empire Realty Cpn. v. Sayre, 107 A. D. 415, is also perhaps oversanguine, though the decision that the 2 in. projection of a chan- nelled front is negligible is in accord with the weight of authority. Small projections on and over the sidewalk, such as cornice, sills, ledge, lintels, window casing, vault light, platform, coping and elevator platform are tech- nical only and not substantial.^" 47. 135 A. D. 213. 48. Levy v. Hill, 70 A. D. 95, affd. 174 N. Y. 536, without opin- ion. It should be observed that the dictum in 50 A. D. 294, on the first trial of this case, to the effect that vendor did not contract to convey any part of the structure in the street, is very properly repudiated. 49. Acme Realty Co. v. Schinasi, 215 N. Y. 495, affg. 154 A. D. 397. 50. Leerburger v. Watson^ 75 Misc. 3. EuLES Applied. 335 The municipality has a right to regulate the front of buildings by ordinance and may grant permission to house-owners to occupy space by constructions not really interfering with the free use of the highway by the public — such as stoops and bay windows.?^ Com- missioners of parks may have authority to give express permission to protrude into highways within their ju- risdiction.^^ Another valid form of authorization of such projec- tions is a license from the city. A bay window licensed for 15 years by the city, and so constructed as to be wholly within the stoop line and by no possibility in- jurious to the neighbors, is not a nuisance, but only a slight and harmless encroachment that comes within the rule of de minimis non curat lex.^^ Such permissions are, however, revocable; and in view of the present policy of New York City in reclaiming its streets, the danger of an order of removal of an oriel window encroaching one foot beyond the building line from foundation to roof is a serious burden which vendee will not be re- quired to assume.^* Adjoining owners may not complain of an encroach- ment on the highway that has existed over 37 years ;^^ or for 30 years.^^ § 484. Practical Applications. — The application of the foregoing rules to practical instances of encroach- ment is illustrated by the following cases. 51. Broadbelt v. Loew, 15 A. D. 343, affd. 162 N. Y. 642, on opin- ion below. 52. Same (dictum). 53. Ebert v. Hanneman, 69 Misc. 223. 54. Acme Realty Co. v. Schinasi, 215 N. Y. 495, a%. 154 A. D. 397. 55. 556 & 558 Fifth Avenue Co. v. Lotus Club, 129 A. D. 339. 56. Levy v. Hill, 70 A. D. 95, affd. 174 N. Y. 536, without opinion- 336 Encroachments. § 485. Railroad Tracks. — An encroachment by rail- road tracks upon vendor's premises is material. Where vendor fails to remove same pursuant to agreement, he is liable for vendee's loss of profit on a resale that was rescinded in consequence." § 486. Party Wall. — A party wall in a city house is a benefit not a burden;^* but where the contract calls for 100 ft. frontage with the privilege of a party wall, it is not satisfied by a frontage of 99 ft. 6 in. with 6 in. of wall.^' The centre of a party wall is not required to be on the dividing line.*" § 487. Building. — An encroachment of 2 in. by a di- lapidated building is no objection, for it cannot be re- stored against vendee's wish.*^ § 488. Bay Window. — 7i/^ in. beyond house line in New York City — held permissible;*^ 2 ft. in Brooklyn — objectionable;^^ 2 ft. 5 in. in Brooklyn, under license — harmless ;^^ 1 ft. in New York — objectionable.*^ § 489. Stoop. — Door posts 20 years old 1 ft. 3 in. be- yond building line in Brooklyn — held very technical 57. Horton v. Childs, 4 Silv. Supm. 431. 58. Hendricks v. Stark, 37 N. Y. 106. 59. Samuelson v. Glickman, 113 A. D. 654. It may be questioned ■whether this was not an unduly strict construction of the contract, for courts have often recognized the fact that party walls ordi- narily straddle the line. 60. Levy v. Hill, 70 A. D. 95, affd. 174 N. Y. 536. 61. Weil V. Radley, 31 A. D. 25 (dictum). 62. Broadbelt v. Loew, 15 A. D. 343. 63. Heymann v. Steich, 134 A. D. 176. 64. Ebert v. Hanneman, 69 Misc. 223. 65. Acme Realty Co. v. Schinasi, 215 N. Y. 495, aflfg. 154 A. D. 397. Rules Applied. 337 objection;^* stoop 6 ft beyond house line in New York City — lawful;*'' 15 ft. same, 30 years old — not enough, danger of interference to affect marketability;*^ newell post 1 ft. 7 in. in New York City, 25 years old — no defect in title.^^ Where a row of houses was biiilt, each with front steps encroaching 5 in. into the area of its left hand neighbor, the trespass was held no defect in 'the title of either.'" § 490. Show Window. — 11 in: over street line — ^held, nothing to show that the character of the neighborhood or surrounding property make such projections an ob- jection to the marketability of the title ;''^ 17 in. — not substantial;''^ 1 ft. under license from bureau of build- ings — no defect.''^ § 491. Ornamental Features. — Small projections on and over the sidewalk — held not substantial, as cornice, 2 ft. 6 in. ; sills, 4 in. ; ledge, 1 ft. 4 in. ; lintels, 7 in. ; window casings, 2 in.; steel coping, 1% in-; platform, 5 ft. by 40 ft. by 1 ff* § 492. Foundation Walls. — Neighbor's wall project- ing 1% in. at depth of about 3 ft. below curb does not prevent the erection of a building on the boundary line and can be chipped off by a mason in a few days ; it is 66. Webster v. Kings Co. Trust Co., 145 N. Y. 275. 67. Broadbelt v. Loew, 15 A. D. 343. 68. Levy v. Hill, 70 A. D. 95. 69. Van Horn v. Stuyvesant, 50 Misc. 432. 70. Same. 71. Eothbard v. Abels, Gold Eealty Co., 128 A. D. 887. 72. Klim V. Sachs, 102 A. D. 44. 73. Greenspan v. Saladino, 126 A. D. 331. 74. Leerburger v. Watson, 75 Misc. 3. 338 Enceoachments, immaterial.'^ Such projection of "a few inches" to a height of 2% ft. does not cause any variance from a contract for a lot with the buildings thereon where the dimensions are given as " more or less." ''* § 493. Water Table.— 5 in. beyond building line, 20 years old — ^held, "very technical objection ;" ^''^ 7 in., 37 years old — does not affect value or marketability.'^ § 494. ya>ult. — A' vault under the sidewalk, being entirely outside the premises contracted to be sold, does not affect title; a vault light, 17 ft 8% in. by 6 ft. 2 in. by 2 in. to 9 in., and a vault light platform li^ in- raise merely technical and unsubstantial questions.'* § 495. Removable Structures. — The encroachment of 1^^ in. on adjoining premises ceases to be material when it can be removed by taking off one layer of a double thickness of weather-boards.^" A fence and privy existing without claim of right are not encum- brances.®^ A retaining wall of loose stones 5 in. over the line is trivial.®^ Wooden steps 4 ft. 9% in. in rear, removed before trial, are no grounds for objection.^* 75. Ungrich v. Sehaff, 119 A. D. 843. 76. Weintraub v. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246. The opinion implies that vendor need convey only to the line of the encroaching wall; but surely that was not the intention of the parties. 77. Webster v. Kings Co. Trust Co., 145 N. Y. 275 (dictum). 78. 556 & 558 Fifth Ave. Co. v. Lotus Club, 129 A. D. 339. 79. Leerburger v. Watson, 75 Misc. 3. 80. Bloomgarden v. Hoffman, 112 A. D. 887. 81. Coates v. Fairchild, 14 W. D. 189, affd. 89 N. Y. 631, on opinion below. 82. Ungrich v. Sehaff, 119 A. D. 843. 83. Uebelacker v. Uebelacker, 112 Supp. 527. CHAPTER VIII. EVIDENCE. 1. Burden of Proof. § 500. In General. — ^It is sometimes loosely stated that the burden of proving unmarketability is on the objector.^ But such remarks should not be construed to alter the fundamental rule that the plaintiff has the burden of proving his case. The vendor in marketa- bility cases must not only show good prima facie title- something more than a couple of deeds accompanied by possession;^ — but he must on disputed points estab- lish his title by preponderance of evidence.* The bur- den is on the plaintiff to establish that the title he tendered was good.* The most accurate statement from vendee 's point of view is that if the defect is patent on the record the purchaser may rest thereon, but otherwise he must give evidence in justification of his refusal to com- plete.^ "Where the contract calls for a large tract and purchaser objects to a single small parcel only, he must show that such parcel is within the premises contracted for.® 1. Rosenblum v. Eisenberg, 123 A. D. 896. 2. Wilson V. Holden, 16 Abb. Pr. 133. 3. Bergen v. Wyckofl, 1 Civ. Proc. 1. See opinion at General Term. 4. Fowler v. Manheimer, 70 A. D. 56, affd. 178 N. Y. 581, with- out opinion. 5. Title Guarantee & Trust Co. v. Fallon, 101 A. D. 187; Bardes V. Herman, 144 A. D. 772; Dyker Meadow Land etc. Co. v. Cook, 159 N. Y. 6, a%. 3 A. D. 164; Begen v. Pettus, 167 A. D. 622. 6. Keynolds v. White, 134 A. D. 248. (339) 340 Burden of Proof. § 501. On Vendee. — ^A bare objection on a matter of fact without any evidence whatever is regarded as cap- tious,' as is an unsupported objection based on an ir- regularity in an action 20 years old.^ A purely technical objection, as that vendor has not shown that he took possession under his deed, will be disregarded unless vendee shows something to the con- trary.' So where the objection is that the sale is within three years after the owner's death, vendee must show both lack of personalty and existence of debts.^" A merely negative objection, as the absence of pa- pers from the file,^^ or that there may be some one not cut off by deeds ^^ or judgments in the chain of title, is not valid without some evidence to support the belief that some impediment exists.^' Where the man who owned 20 years ago was cut off by a tax sale, the sug- gestion of his having left a widow entitled to redeem will not be entertained in the absence of proof either that he ever was married or that he has died." The suggestion that unknown heirs may be infants carries no weight ;^^ nor that a woman may after 25 years have a husband entitled to some rights in premises she then conveyed.^* The objection that the encumbrances are not in ac- cord with those agreed upon is not in itself sufficient 7. Lenihan v. "Ward, 119 A. D. 870. 8. Parrell v. Noel, 17 A. D. 319. 9. Nicklas v. Keller, 9 A. D. 216. 10. Keitel v. Zimmermann, 19 Mise. 581; Moser v. Cochrane, 107 N. Y. 35. 11. Siseo V. Martin, 61 A. D. 502. 12. Fryer v. Eockefeller, 63 N. Y. 268. 13. Goodwin v. Crooks, 58 A. D. 464. 14. Rosenblum v. Eisenberg, 123 A. D. 896. 15. Wheeler v. Scully, 50 N. Y. 667. 16. Matter of Bellesheim, 17 S. R. 10. Vendee^s Burden. 341 groiiTic! for refusing title in the absence of evidence that they could not have been adjusted upon closing." The vendor is entitled to favorable inferences to support a record title free from suspicion.^* These are often expressed in terms of presumptions, and that topic should be examined for a complete survey of the cases.^^ Where vendee objected to a five-year lease under which B claimed to occupy the basement as sub- tenant, but nevertheless it was conceded that the lease had been surrendered, the surrender will be considered valid and the lease properly canceled.^" If the usual inference of merger is not to be drawn when the mort- gagee acquires the fee, vendee must show why not.^^ Even a title by adverse possession may be so plausibly established as to throw upon vendee the burden of dis- covering some person not barred.^^ * A corporation was limited in the amount of property and income it could have. It received a devise almost but not quite equal in value to the amount of real es- tate prescribed. Those facts were not considered enough to render doubtful the title to a parcel thereof conveyed by the corporation, in the absence of proof that its total holdings of both realty and personalty at any time before the conveyance in question actually exceeded the limit.^^ 17. Keitel v. Zimmermann, 19 Misc. 581; Forsyth v. Leslie, 74 A. D. 517. 18. Seitz V. Groves, 99 A. D. 629. For facts of this case, see § 563. 19. See U 520-532. 20. Weintraub v. Weil, 53 Misc. 325. 21. Krekeler v. Aulbach, 51 A. D. 591, affd. 169 N. Y. 372, on other grounds. 22. Ruff V. Gerhardt, 73 A. D. 245. 23. Hornberger v. Miller, 28 A. D. 199. An extreme case. It would seem as though enough had been shown to shift to vendor the burden of evidence. 342 Burden of Peoof. From the recent case of Bensinger v. Erliardt, 74 A. D. 169, it miglit be inferred that the foregoing rule does not apply to the case of an agreement to purchase by warranty deed, free from encumbrances; that vendor is required to tender not only a proper deed but also "proof that no dower interest attached" while title stood in the last record owner and "proof that there were no encumbrances or liens or taxes or assessments imposed upon the property while title was thus in M. " This opinion appears to be against the great weight of authority, especially as the court was discussing an equitable action where vendor is universally permitted to enforce his contract if the title tendered was sub- stantially good, even though it required explanation or tinkering. There is no way to reconcile it with the cases above cited in this section, nor with those cited in the chapters on Contract and Record of Title. § 502. On Vendor, — Special Circumstances. — Where vendor relies on special circumstances to avoid doubt or defect, he must introduce evidence to explain the ambiguous situation or rebut the usual conclusion. An assignment of mortgage by trustees to one of them- selves individually is ordinarily voidable ; a vendor re- lying on title through such an assignment must show that it cannot be avoided.^* An encroachment by ven- dor's building upon the adjoining premises must be ex- plained, where adverse holding is relied on, to the extent of showing that all owners of such adjoining premises are barred.^^ Where after entry of judgment in foreclosure judgment creditors appear by attorney 24. Priessenger v. Sharp, 59 Super. 315. 25. Wilhelm v. Federgreen, 2 A. D. 483, afifd. 157 N. Y. 713, on opinion below; Arnstein v. Burroughs, 27 Supp. 958; Miner v. Hilton, 15 A. D. 55. Paeol Proof. 343 and consent to the judgment, the authority of attorneys acting in such unusual manner must be shown.^^ § 503. Rebuttal. — Where vendee has on a disputed issue of fact shown that the building extends beyond the boundary line, it is vendor's duty to prove title to the strip encroached upon^' — or an easement therein. Where vendee objecting to an open lis pendens shows that the complaint in the action states a good cause of action, it becomes the duty of the vendor to show that there is no foundation in fact for such apparent encumbrance.^* On the closing date tenants were in posession under leases expiring three months later. Soon after the lat- ter date vendor sued for specific performance and in his reply alleged that the tenants had vacated. It was held that vendee was not bound by the reply, but in the absence of formal tender with notice could wait for proof upon the trial.^^ Vendors ought to know best about their own titles, and if the purchaser's allegation is vague or incorrect, they ought to correct it.*" 2. Proof of Facts. § 504. Parol. — In an action at law based upon breach of contract to convey real estate vendor need make no better proof of title than if he were being sued as lessee in ejectment for breach of a covenant in the lease ; and parol evidence is therefore sufficient.^ Even in specific 26. Lyon v. Lyon, 67 N. Y. 250. 27. Steckler v. Godillot, 17 Misc.. 286. 28. Wilmurt v. McGrane, 16 A. D. 412. 29. Pakas v. Clarke, 136 A. D. 492. 30. Shriver v. Sliriver, 86 N. Y. 575, 581. 1. Murray v. Harway, 56 N. Y. 337. 344 , Peoof of Facts. performance, proof by parol is admissible, and if sat- isfactory will sustain title.^ § 505. Affidavits. — ^Affidavits are also admissible,- nor is it necessary that they should have been made in the action.* When a purchaser at judicial sale objects to title, it is the universal practice to submit affidavits upon the disputed point.^ Clear, strong, undisputed affidavits are sufficient to establish a title ;^ but a mere assertion by an interested party, not showing how affi- ant knows the facts, is not convincing.^ A rather tech- nical distinction was drawn in Murphy v. Shea, 143 N. Y. 78, between an affidavit by F for use on application for guardian ad litem and another affidavit by him for use on an application to be relieved from his purchase. Both were made in the same action in partition. It was held that the first was part of the judgment roll and sufficiently proved service on Gr which it averred; but that the second which denied such service was no part of the roll and merely raised a question of fact which had been decided in favor of the sufficiency of the title by the court below. Nevertheless it is difficult to see why doubt is not thrown upon the title by the second affidavit, and how in the absence of all other evidence the title can be regarded as marketable. Nor is it easy to reconcile the recent case of Lowenfeld v. Ditchett, 114 A. D. 56, in which it is held that conflict- ing declarations and recitals which are self contradic- tory have no probative effect. 2. Same (dictum). 3. Coleman v. Brueh, 132 A. D. 716. 4. Herbert v. Smith, 6 Lans. 493; Alvord v. Beach, 5 Abb. Pr. 451. 5. Metzger v. Martin, 87 A. D. 572, affd. 177 N. Y. 561, without opinion. 6. Toole V. Koenler, 14 S. R. 934. OONTEMPOEANEOUS "ACTS. 345 § 506. Pleadings. — A pleading in the action to en- force the contract is not proof that title is good, al- though it allege that the facts upon which vendee 's ob- jection is based have been changed so as to remove such objection.' A recent petition for probate, not granted, is not given much weight as evidence of the facts alleged even as against petitioner through whom title is derived.^ Weight is, however, attached to the averments of a complaint in partition 70 years old.^ § 507. Sheriff's Certificate. — A sheriff's certificate of service is not good proof of acts done outside of his county.^" § 508. Contemporaneous Acts. — Contemporaneous acts, such as numerous other conveyances made by him at about the same time as the one in the chain, may be looked to for the purpose of ascertaining a remote grantor's intent.^^ "Where the existence of a seal was in dispute, it was remarked that the fact that subsequent grantees accepted title was perhaps as much evidence of the existence of the seal as the failure of the record to note it was of its absence.^^ Long possession is a strong fortification of title.^* Long continued failure to use city premises is con- trolling evidence, in the absence of proof to the con- 7. Pakas v. Clarke, 136 A. D. 492. 8. Matter of Clarke, 131 A. D. 688, affid. 195 N. Y. 613, without opinion. 9. Hagan v. Drueker, 90 A. D. 28. 10. Farmers' Loan & Trust Co: v. Dickson, 17 How. Pr. 477. 11. Potter V. Boyee, 73 A. D. 383, rvsg. 36 Misc. 467, affd. 176 N. Y. 551, without opinion. 12. Dana v. Jones, 91 A. D. 496. 13. Dias V. Glover, Hoff. 71. 346 Proof of Facts. trary, that they are not now required or reserved for public use.^^ § 509. Recitals. — In the Chain. — Great weight is at- tached to recitals in old deeds. They are in general taken at their face value and allowed a probative force increasing with their age. Recital of consideration in a deed about 30 years old was held sufficient evidence of same in absence of contradiction.^^ The contents of a lost instrument were held sufficiently and properly proved by recitals in a deed about 38 years old;^" also in one about 90 years old;^^ and a description in a deed over a century old referring to a certain line as running to highwater mark could be infected with doubt only by strong evidence on the location of the tidal waters.^* In more recent deeds recitals are ordinarily accepted as establishing prima facie title accordingly. The re- cital of a seal is sufficient prima fade evidence of its existence.^^ So of consideration.^" When a deed over 15 years old recites that grantor is unmarried, the ob- jection that his wife did not join is untenable in the absence of evidence that he had a wife.^^ Where the conveyance is not voluntary, as in the case of an execution sale, no such probative force was permitted at common law to the recitals in the deed.^^ 14. Gearty v. Mayor, 49 How. Pr. 33. 15. Dooper v. Noelke, 5 Daly, 413. 16. Phillips V. Schiffer, 64 Barb. 548. 17. Koons V. Potter, 105 A. D. 622. 18. Brenstein v. North American Realty Co., 119 Supp. 1. 19. Dana v. Jones, 91 A. D. 496; Thorn v. Mayer, 12 Misc. 487; Todd V. Union Dime Savings Institution, 118 N. Y. 337, rvsg. 20 Abb. N. C. 270; Same v. Same, 128 N. Y. 636. 20. Voorhies v. Voorhies, 66 Misc. 78; Doody v. Hollwedel, 22 A. D. 456. 21. Forsyth v. Leslie, 74 A. D. 517. 22. Goldman v. Kennedy, 49 Hun, 157. By statute sheriffs' Recitals. 347 A recital of "due service" in a judgment roll has been lield prima facie proof of service, satisfactory in the absence of an affirmative showing to the contrary.^^ Confirmation of a referee's report satisfactorily estab- lishes the existence of a missing deed therein recited.^* And recitals in orders may establish the existence and contents of missing papers.^^ A certificate of acknowledgment is evidence of the facts required to be stated,^'' and may be read in con- nection with the county clerk's certificate;^'' but it is no evidence of facts not required to be stated.^^ The recital of certain facts does not prove the ab- sence of other essential facts, nor raise any doubt as to their existence.^^ A correction in the spelling of grantee's name in a deed re-recorded on the day that such grantee con- veyed was held satisfactorily to establish that the orig- inal conveyance was made to such grantee and not to a party by the name as first spelt. ^^ An element of estoppel often results from recitals in deeds 20 years old are now evidence of their contents. Code Civ. Proc, § 1491. 23. Volz V. Steiner, 67 A. D. 504 (partition) ; Berkowitz v. Brown, 3 Misc. 1 (foreclosure; dictum). 24. Calder v. Jenkins, 16 Supp. 797. 25. Alvord v. Beach, 5 Abb. Pr. 451. 26. Veit V. Schwob, 127 A. D. 171. 27. Thorn v. Mayer, 12 Misc. 487. 28. Matter of Bellesheim, 17 S. R. 10; Cromwell v. Phipps, 6 Dem. 60 (same case). The rule as stated is doubtless correct as applied to recent acknowledgments; but it is not apparent why the same probative value — slight at first, but increasing with age — should not be given to the unnecessary averments in an acknowl- edgment as to those in the body of the deed. Surely the ordinary recitals are not required either by statute or by common law. 29. Lynch v. Pfeiffer, 110 N. Y. 33. 30. Coleman v. Bruch, 132 A. D. 716. 348 Peoof of Facts. the chain; as where an agreement signed by B and others reciting him as the proprietor of a parcel owned by his wife (who did not sign) was said nevertheless to be probably binding upon B and all the other parties who had mutually benefited therefrom. ^^ But no es- toppel results from declarations of executors against their interest.^^ And if the estoppel is relied on, it must be complete as against all co-owners.^* F having taken a conveyance from L executed an in- strument reciting that L did not have title. There was, however, no dispute about the title which L had ac- quired and which was in fact perfectly good, and F's instrumient was held not to throw doubt on the title.^* § 510. In other Deeds. — Eecitals in deeds not in the chain of title but related thereto are admissible as evi- dence. In practice they are often important aids for determining boundaries, pedigree, identification of par- ties and other matters. It has been held that issue of execution could be proved by this means, where vendor claimed under an execution sale and being unable to prove directly the issue of the execution put in evidence the deed of another plot sold under the same judgment to P and a deed thereof by P, the acknowledgment of which showed that P was identified to the notary by the judgment-debtor.^** The deed itself through which title is derived has been proved in the same manner, where a series of other deeds were found purporting to have been executed by trustees under a direction to dispose of the whole estate, accompanied by releases 31. Altman v. McMillin, 115 A. D. 234. 32. Huber v. Case, 93 A. D. 479. 33. Sehultz v. Rose, 65 How. Pr. 75. 34. Berger v. Waldbaum, 46 Misc. 4. 35. Goldman v. Banta, 12 Supp. 346. Records. 349 and acknowledgments from the beneficiaries of their respective shares of the estate.*' Deeds of adjoining premises reciting B and D as in possession of the parcel in question or owning same were admitted to prove title through B and D, to whom no conveyances could be found.*^ § 511. Official Records. — A decree of probate may be used as evidence of the due execution of a will under which devisee claims; but such decree is wholly inef- fective and without probative value if any of the neces- sary parties have not been cited.*® By § 955 of the Code records from the surrogate's ofKice over twenty years old are made admissible as evidence of the facts therein stated.*' The effect of a register's record indicating the ab; sence of a seal from a deed is thoroughly discussed on the two appeals in Todd^v. Union Dime Savings Insti- tution, 118 N. Y. 337, and 128 N. Y. 636. The deed re- cited a seal and was known to have borne one in 1874; but its record in 1870 showed a short dash after the grantor's signature, and the assistant deputy register who had been in office since before that date testified that such dash was the customary mark to denote ab- sence of seal at the time of record. It was held that in the absence of proof of who made the record and dash there was no evidence whatever that the seal was miss- ing. On the second trial with a little additional evi- dence on each side, the deed was sustained on the merits. In an assessment roll a blank in -the column headed 36. Doll V. Pizer, 96 A. D. 194. 37. Koons v., Potter, 105 A. D. 622. 38. Dworsky v. Amdtstein, 29 A. D. 274. 39. Lalor v. looker, 130 A. D. 11; and see Flanagan v. Thomas, 166 A. D. 941. 350 Proof of Facts. "amount of assessment" does not affirmatively show that the premises listed opposite same were not in fact assessed.*" Health department records, while admissible to prove the death of parties and the date thereof, are not sufficient in the absence of testimony of anybody hav- ing personal knowledge of such deaths to establish same beyond that reasonable doubt which renders titles unmarketable.*^ "Public and authentic maps accepted and acted upon by conveyancers generally" are admissible. Such are damage maps, Ludlam's map of the Common Lands, 1822; Goerek's map of same, 1796; and Ean- del's (or EandalPs) maps.*^ § 512. Testimony. — ^A deposition taken in another suit may be used to prove a link in the chain of title.** A statement in open court upon which a decree of probate is based is satisfactory evidence of the fact stated, when the only person who could directly dis- pute same is the person who made the statement; as where a will referred to a lease to K, and K stated that she had no such lease.** 513. Identity and Pedigree. — The identity of persons may be inferred from their names, especially when ac- companied by an appropriate phrase describing resi- dence. Title through the heirs of Lula P. McGarry was 40. Dyker Meadow Land, etc., Co. v. Cook, 159 N. Y. 6, affg. 3 A. D. 164. 41. Walton v. Meeks, 41 Hun, 311, affd. 120 N. Y. 79. 42. Dietz v. Farisli, 44 Super. 199, affd. 79 N. Y. 520, on other grounds. 43. Goodwin v. Crooks, 58 A. D. 464, affg. 33 Misc. 39. 44. Furst V. Bohl, 133 A. D. 627. A question of the suspension of the power of alienation raised on probate and again in this controversy turned upon the existence of such lease. lAiSTEACT OF Title, 351 held in Flanagan v. Thomas, 166 A. D. 941, sufficientlj proved by surrogate's records in the appropriate county relating to a person of that unusual name. A deposition by a member of the family that G died without children is admissible to prove Gr's death with- out children, although such deposition was taken in an- other suit.*^ Testimony of M's niece that M had died at the age of twelve as she had heard from her father and mother and family talk and also that she had seen M's tombstone satisfactorily accounts for the absence of a deed from M.*" A partition suit 70 years ago was based upon G's death without children. To prove that fact witnesses testified that Q "left him surviving four brothers and two sisters. ' ' It was held that the referee 's finding that they were G's only heirs was after so many years cor- rect to a moral certainty.*^ The declaration of a person that he is the sole sur- viving heir of W has no probative force in the absence of evidence that he is a member of Ws family.*^ Nor is an attorney's affidavit on information and belief sufficient to supply a missing link in the chain.* ^ § 514. Histories. — Histories may be referred to for proof of ancient facts, as for instance, the existence of a certain road in 1664.®" § 515. Abstract of Title. — ^It is common practice and a great convenience to attempt to prove title by an ab- stract; but there is probably no legal authority for 45. Goodwin v. Crooks, 58 A. D. 464. 46. rreedman v. Oppenheim, 187 N. Y. 101 (dictum). 47. Hagan v. Drucker, 90 A. D. 28. 48. Lowenfeld v. Ditchett, 114 A. D. 56. 49. Mason v. Scott, 50 A. D. 463. 50. Caminez v. Goodman, 119 A. D. 484. 352 Proof of Facts. such method. An old abstract may be introduced as the foundation for documents contained therein which on coining from the proper sources are admissible as ancient."^ § 516. Admissions. — An admission binding upon one party dispenses with proof by the other of the point admitted. This rule was applied with great vigor in Fearing v. Irwin, 4 Daly, 385, to the broad admission of title in an agreed statement. The question was sup- posed by counsel to turn on the legality of the closing of Bloomingdale Road, and it was agreed that if it was legally closed, the title to the abutting half vested in plaintiff's grantor D. The court began by saying that D and his predecessors never had title to any land in the highway and hence acquired no better title when the road was closed; but on reargument the judges re- versed their decision, holding that the admission will be presumed to be supported by evidence not disclosed. It may be adde^ that leave to amend the statement was denied and the judgment was affirmed by the court of appeals.^^ § 517. Ancient Documents. — The benign doctrine of the common law that ancient documents prove them- selves seems much less familiar to the bar than it ought to be. It is of invaluable assistance in proving title and almost as important as the statutes of limitations in overcoming the irregular execution of deeds. The common law rule is well illustrated by the case of Cole- man V. Bruch, 132 A. D. 716, where affidavits of identity over forty years old, found in an abstract of title were held to be sufficiently ancient, in proper custody and 51. Coleman v. Bruch, 132 A. D. 716. 52. 5 Daly, 383; 55 N. Y. 486. FoEEiGN Law. 353 free from suspicion, and hence admissible without proof of execution. The rule is broadly extended to recorded copies by Freedman v. Oppenheim, 187 N. Y. 101 {dictum). In Abrams v. Ehoner, 44 Hun, 507, it was held that a defectively acknowledged deed over 50 years old was admissible to show claim of title. So of deeds 40 years old;«3 22 years old.^* But the deed must be free from suspicion ; if attacked by evidence of forgery it may not be used as an ancient document.®^ By statute public records in New York City are ad- missible as evidence of their contents after 20 years.^" § 518. Custom. — In deciding upon the validity of title, it is always proper to take into consideration the custom of the country at the time of the conveyance.^' § 519. Foreign Law. — When the only evidence of foreign law, upon which the title depends, is the con- flicting testimony of foreign lawyers, the title is open to grave doubt.^^ It appears from the Connecticut decisions that the authority given by statute to executors and adminis- trators must be strictly pursued. The Connecticut statute provides that the court shall, upon application for leave to sell, take a sufficient bond. The failure of the administrator to file such bond raises a serious question as to the validity of the sale.'* 53. Fryer v. Rockefeller, 63 N. Y. 268. 54. Shriver v. Shriver, 24 Hun, 658, affd. 86 N. Y. 575. 55. Seymour v. Delancey, 1 Hop. 436, affd. 5 Cow. 714. 56. Code Civ. Proc, § 955; Lalor v. looker, 130 A. D. 11. 57. Matter of Browning, 2 Paige, 64. Apparently the court took judicial notice of the custom not to record deeds before the Re- cording Acts. 58. Taylor v. Chamberlain, 6 A. D. 38. 59. Same. 354 Presumptions. 3. Presumptions. § 520. Limit of Proof. — So closely connected with burden of proof that the two are sometimes expressed the one in terms of the other is the subject of presump- tions. In some respects the classification of cases under the latter heading is unscientific,' because the words "presume" and "presumption" are used ambiguously in the opinions. Aside from the confusion between pre- sumptions of law and presumptions of fact, there is a third sense in which the term is used in marketability cases — to denote the limit beyond which vendor need not go in establishing his title by evidence. In every title traced backward to its origin there are devolu- tions by descent or judicial proceedings or transfers by will or deed involving proof of numerous collateral facts, peculiarly beyond the power of a subsequent purchaser to prove. As these are pursued they ramify indefinitely until in a metaphysical sense it becomes impossible to account for every contingency. Common sense comes to the rescue with the suggestion that possession backed by a claim of record and ripening into legal title is such notice to the. world that even though there may be some minute flaw in the technical title, it is of little conse- quence, or the person entitled to take advantage of his expiring right would have done so already. Conse- quently the law treats proof of title in a fairly liberal spirit, and usually declining to wander far afield in metaphysical quests, shuts off proof and argument by the declaration that the correct devo- lution of title is presumed. A presumption of this character does not- conform exactly to the accepted definitions, for it is neither an inference from eviden- tiary facts — presumption of fact; nor a rule of law prescribing the conclusion to be drawn in the absence of other evidence — presumption of law.^ It is rather 1. Wigmore on Evidence, § 2491. Presumptions. 355 a substantive rule — a direction that an inference in support of title must be drawn not as matter of logic or evidence, but to confine the proof within reasonable bounds. It is on this ground that a lost deed is presumed in order to fill a gap in title. "Absolute certainty is seldom attainable in human affairs; in titles to land almost never." After 30 years undisturbed possession under a deed preceded by 15 years more in the maker of such deed, without any adverse claim, it is not unreasonable to "presume" a lost deed as the source of title.^ After 140 years it is still easier to create such fictitious instru- ment by ' ' presumption. ' ' ' An opinion that shows the hoUowness of this doctrine as a rule of evidence is Abrams v. Rhoner, 44 Hun, 507, which gives the owner the option of presuming a lost deed or that a prior deed never was delivered. However, the doctrine is wholly beneficial and should not be condemned because it is expressed in unsuitable phraseology. Lapse of time often gives rise to this presumption, as where a voidable assignment for benefit of creditors is after 33 years presumed accepted by all the creditors.* And after 45 years the debts may be presumed dis- charged, the purposes of the trust fulfilled and the title reverted to the assignor.^ A will probated in 1861 de- vised a contingent remainder to the descendants of P. After 35 years there are still half a dozen vested remain- dermen to be disposed of before the contingency can take effect. The possibility of its happening is so remote that in the absence of information about P, the court may in order, to dispose of the case presume that he has died without issue.® 2. Grady v. Ward, 20 Barb. 543. 3. Eeformed Protestant Dutch Churcli v. Mott, 7 Paige, 77. i. Morrison v. Brand, 5 Daly, 40. 5. Kip V. Hirsh, 103 N. Y. 565, rvsg. 53 Super. 1. 6. Matter of Brennan, 21 A. D. 236 (dictum). 356 Presumptions. The presumption directs that a plausible and cus- tomary inference may be rejected for a strained though possible inference which supports the title.'' Occasionally a presumption directly to the contrary is found, as where the recording 25 years later of a deed reciting a mortgage was held to indicate that the mort- gage was then alive.® The rule does not prevent an inference of fraud where a trustee conveying to a third party reacquires title individually within a few days.' § 521. Presumptions of Law. — The numerous pre- sumptions of law are freely applied in support of titles. They may be rebutted by contradictory evidence;^" but such evidence must show a state of facts inconsistent with that assumed by the presumption or it will be disregarded.^ § 522. Regularity. — Judicial Proceedings. — " It is always presumed that the court has taken the steps necessary to investigate the rights of the parties and that on investigation it has properly decreed a sale." ^^ 7. Ennis v. Brown, 1 A. D. 22, holding that delivery of a deed •will be presumed as of the date of its record, instead o:^ the date of execution, when the grantee was incorporated on the former date. 8. Mead v. Mead, 5 Supp. 302 — an unnecessary and undesirable departure from the liberal spirit of the cases cited above. 9. People V. Globe Mutual Life Ins. Co., 33 Hun, 393; Toole v. McKiernan, 48 Super. 163. 10. Hegeman v. Stearns Realty Co., 117 A. D. 754, affd. 192 N. Y. 557; Shriver v. Shriver, 86 N. Y. 575. 11. Wilcox V. Egan, 51 Super. 273; Lynch v. Pfeiffer, 110 N. Y. 33. 12. Alvord V. Beach, 5 Abb. Pr. 451 ; Wilcox v. Egan, 51 Super. 273; Goodwin v. Crooks, 58 A. D. 464; Sisco v. Martin, 61 A. D. 502. Eegulaeity. 357 'An order in the form of a court order may be pre- sumed a judge's order.^^ The following details will be presumed without re- cital or entry of record: — Adjournment;" service of papers within the suit on application for amendment ;^^ that service on the infant defendants was made before the appointment of their guardian ad litem}^ Where the court has inherent jurisdiction to act, as in the appointment of a successor trustee, it must be pre- sumed that the notice given, though not extending to all parties interested, was sufficient." § 523. Authority. — Private individuals as well as fiduciaries and public officials are presumed to act with- in the law and within the scope of special authorizations. The judge and clerk of court are presumed to know the law and comply with it when engaged in the exem- plification of a document. Formal omissions, such as certifying to the genuineness of the judge's signature, may be supplied by such presumption.^^ A foreign corporation authorized to take real estate only for the transaction of its business and in satis- faction of debts, will be presumed to have taken the premises in question (which were not necessary for its business) in satisfaction of a debt." Legal acquisi- tion was conclusively presumed in Lancaster v. Amster- dam Improvement Co., 140' N. Y. 576, rvsg. 72 Hun, 18, holding that subsequent purchasers could not even raise the question. 13. Regan v. Traube, 16 Daly, 152. 14. Rigney v. Coles, 6 Bosw. 479. 15. Althause v. Radde, 3 Bosw. 410. 16. Wood V. Martin, 66 Barb. 241. 17. Griffin v. Baust, 26 A. D. 553. 18. Rogers v. McLean, 11 Abb. Pr. 440, affd. 34 N. Y. 536. 19. Alward v. Holmes, 10 Abb. N. C. 96. 358 Presumptions. A conveyance to M " as trustee for A " is presumed to be on a valid express trust.^" But such presumption is overcome by proof that the cestuis received the rents and profits.^^ Proceedings to organize a corporation are presumed to have been taken in compliance with the statute, al- though the recitals show only partial compliance. There is no inference that the facts not recited were omitted.^^ A city acquiring real estate is presumed to have taken it for a public use.^' A lease with provision for cancellation on ten days' notice and payment of |500 was conceded to have been surrendered; it was presumed to have been properly cancelled.^* No such presumptions, however, are indulged in to support an execution sale. The execution must be proved and cannot be presumed from the fact of the sale.^^ Nor is presumption sufiQcient to fill the gap in the following facts: — A mortgage of $22,000 was assigned to R as trustee for A; to show that it had been reduced to $20,000 vendor relied on an extension agreement ac- knowledging payment of $2,000 executed by "A per B, atty;" but vendor showed no further assignment nor any authorization.^* § 524. Performance of Duty. — The law so confi- dently expects every man to do his duty that where the 20. People v. Open Board of Brokers' Building Co., 49 Hun, 349, affd. 112 N. Y. 670, on opinion below. 21. Seidelbach v. Knaggs, 44 A. D. 169, a%. 27 Misc. 110, affd. 167 N. Y. 585, without opinion. 22. Lynch v. Pfeiffer, 110 N. Y. 33. 23. Gearty v. Mayor, 49 How. Pr. 33. 24. Weintraub v. Weil, 53 Misc. 325. 25. Goldman v. Kennedy, 49 Hun, 157. See Code Civ. Proc, § 1471. 26. Piza V. Lubelsky, 121 A. D. 734, see 195 N. Y. 536. Decedents. 359 duty appears a presumption of performance follows. A' trustee satisfying a mortgage is presumed to act within his duty." Having assigned a mortgage, he is pre- sumed to have accounted properly for the proceeds.^* An attorney in fact is likewise presumed to have ac- counted for the proceeds of real estate sold.^' A referee is presumed to act legally; his failure, to comply with formal requirements does not imply any defect in his sale and conveyance.^" A county clerk is presumed to have affixed a seal required by law,^^ and to have filed a judgment roll.'^ The rather dubious pre- sumption that building inspectors will not permit an encroachment of one inch on the street may be (^ast into the balance when the testimony of surveyors is conflict- ing.^^ § 525. Decedents. — There is a general presumption that no person dies without heirs. A party claiming title through escheat must show by satisfactory evidenqe that the former owner left no heirs.^* An allegation of death without heirs in a complaint in foreclosure in which the widow was joined would after 35 years undisturbed possession be sufficient evidence. ^^ There is no presump- tion, where heirs are shown on the father's side, that decedent also left heirs on the mother's side.^" 27. Bendheim v. Morrow, 73 Hun, 90, and see 9 A. D. 617, affd. 158 N. Y. 729, without opinion. 28. Herbert v. Smith, 6 Lans. 493. 29. Pinch v. Gillespie, 122 A. D. 858. 30. Farrell v. Noel, 17 A. D. 319. 31. Thorn v. Mayer, 12 Misc. 487. 32. Burke v. Kaltenbach, 125 A. D. 261. 33. Sasserath v. Metzger, 30 Abb. N. C. 407. 34. Matter of Clarke, 131 A. D. 688, affd. 195 N. Y. 613, with- out opinion; Fowler v. Manheimer, 70 A. D. 56, aflfd. 178 N. Y. 581, without opinion. 35. Seitz V. Messersehnitt, 117 A. D. 401 (dictum). 36. Greenblatt v. Hermann, 144 N. Y. 13, rvsg. 69 Hun, 298. 360 Presumptions. There is no presumption as to executors or wives or bus- Bands of unknown heirs. ^' There is a strong presumption that a testator intends to dispose of all his property. When possible a will will be so construed as to avoid partial intestacy.^* The issue of letters testamentary raises the presump- tion of acceptance by the three executors named therein. A deed executed five years later by two of such executors only, therein described as ' ' acting executors, ' ' raises an inference that the remaining executor renounced, and leaves the title in doubt. ^^ Decedent's personal estate is presumed sufficient to pay debts-" and legacies even though charged on the land.« § 526. Real Estate. — A title or right acquired by ad- verse jpossessio/Ji or user is sometimes spoken of as raising the presumption of a grant. *^ The owner of real estate is ordinarily presumed to have taken possession;*' but it was held in Crabbe v. Hardy, 77 Misc. 1, that no such presumption attached to marsh and beach land except under title running back to a patent. Delivery of a deed may be presumed to have been made as early as the date of record; also its sufficiency to pass title.** 37. Snyder v. Parezo, 151 A. D. 110, affd. 206 N. Y. 689, without opinion. 38. Sehult V. Moll, 132 N. Y. 122. 39. rieming v. Burnham, 100 N. Y. 1, rvsg. 36 Hun, 456. 40. Bogert v. Bogert, 45 Barb. 121; Dunham v. Minard, 4 Paige, 441. 41. Goodwin v. Crooks, 58 A. D. 464. 42. Merges v. Eingler, 34 A. D. 4i5. 43. Nicklas v. Keller, 9 A. D. 216. 44. Fryer v. Rockefeller, 63 N. Y. 268. Payment. 361 It is to be presumed that a party wall agreement may- run with the land.^^ The presumption is that a conveyance bounded by a street, whether actual or indicated on a map, carries the fee to the centre of such street.^'' Where grantor has conveyed the land on the other side of the road, his subsequent conveyance bounded by such road is presum- ed to carry the entire fee." But no such presumption arises from a deed not mentioning any road though conveying to the line of a road as shown on a map.^* § 527. Payment. — A mortgage more than twenty years overdue is presumed satisfied*^ nor is it necessary for vendor to furnish any proof of payment. Where the due date is not shown, the mortgage will be pre- sumed to be payable on demand, and the twenty years calculated from the date of the mortgage.^" A vendor's lien is presumed satisfied after thirty years.^^ An action for admeasurement of dower is presumed settled after twenty years inaction.^^ 45. Driscoll v. Carroll, 127 A. D. 265, see 147 A. D. 522. 46. Matter of Ladue, 118 N. Y. 213, rvsg. 54 Super. 528. The presumption was applied to a conveyance running to ' ' land of the grantor intended for a road ' ' — a very strained construction bol- stered up by reference to public policy. 47. Haberman v. Baker, 128 N. Y. 253. 48. Same. 49. Dunham v. Minard, 4 Paige, 441; Forsyth v. Leslie, 74 A. D. 517; Forbes v. Reynard, 113 A. D. 306, affg. 49 Misc. 154; Ouvrier v. Mahon, 117 A. D. 749; Donnelly v. Wight, 192 N. Y. 561; Williamsburgh Trust Co. v. Gottsch, 121 Supp. 890. 50. Katz V. Kaiser, 10 A. D. 137, affd. 154 N. Y. 294. 51. Berger v. Waldbaum, 46 Misc. 4. 52. Port Jefferson Realty Co. v. Woodhull, 128 A. D. 188. 362 Peesumptions. § 528. Jurisdiction. — The jurisdiction of a court of general jurisdiction is presumed,^^ even against an in- fant." § 529. Miscellaneous. — There is no presumption that vendee has such general knowledge of the character and restrictions of the locality as to be apprised that vendor had a leasehold only and intended to sell the house as building material. ^^ The common law is presumed to prevail in another state.^^ Notice to a co-tenant of adverse holding may be pre- sumed from visible, hostile, exclusive and notorious possession.^' And see cases on Merger, § 244. § 530. Continuity. — The rule that a state of facts once shown to exist is presumed to continue is not revers- ible; — a man shown to have been married in 1899 is not presumed to have been married in 1897.^* A single man, who after an absence of five years died in a foreign country, is presumed 35 years later with no further news about him to have died unmarried and without issue.^' So 25 years after death in a distant state ;^° and where death is presumed after 35 years' absence.*^ 53. Steinhardt v. Baker, 163 N. Y. 410, affg. 25 A. D. 197; Burke v.Kaltenbach, 125 A. D. 261. 54. SchoUe v. Scholia, 55 Super. 468 (1885, special term). 55. Stone v. Thaden, 16 Daly, 280. 56. Grillenberger v. Spencer, 7 Misc. 601. 57. Hamershlag v. Duryea, 38 A. D. 130. 58. Eussell v. Wales, 119 A. D. 536. 59. Demarest v. Friedman, 61 A. D. 576. 60. Jacobs V. Fowler, 135 A. D. 713. 61. Johnston v. Garvey, 139 A. D. 659, affd. 201 N. Y. 548, on opinion below. Continuity. 363 By far the most important application of the rule to marketability cases is found in thpse involving ques- tions of life and death. § 531. Life. — A person about whom nothing whatever is shown except that he formerly owned the premises is presumed after the period of 20 years — or even 30 years — to be still alive. ^^ The presumption of the continuation of life is not strong enough to base title upon ; it should rest on facts so clear that practically no doubt exists. A person who after seeking employment in a dangerous occupation has not been heard of for three years, is not presumed alive beyond reasonable doubt.*^ § 532. Death. — A presumption of death may arise from strong evidentiary facts, such as the failure to hear from a vessel on which the party sailed. Double the longest usual time for the voyage, being abundant time for hearing from vessels which might have rescued the crew, was held sufl&cient to raise the presumption of death within the usual period of the voyage.^* This is merely a presumption (or inference) of fact. Its distinction from the presumption of law is well brought out by the case of Seligman v. Sonneborn, 1 How. Pr. N. S. 465, affd. 27 W. D. 326, where the exact date of death was sufiSciently established to make title through judg- ment against him a few weeks later doubtful, but title through his heirs ten years later marketable. The legal presumption of death is highly technical. It requires a considerable basis of fact; and as it is 62. Rosenblum v. Eisenberg, 123 A. D. 896; Dworsky v. Arndt- stein, 29 A. D. 274. 63. Van Williams V. Elias, 106 A. D. 288. Plaintiff failed to join the heir apparent as defendant in partition. 64. Gerry v. Post, 13 How. Pr. 118. 364 Presumptions. governed by no hard and fast rule it can be expounded only by a fairly ample abstract of each case. It does not arise where there is no evidence at all ex- cept that the person in question once existed upwards of fourteen^^ or twenty years ago."* Nor on the lapse of thirty years;*' nor even fifty years without inquiry at the missing person's last place of residence.®* In the following cases the presumption of death was held satisfactorily established: — Sixty-five years. — In a deed by two brothers executed 33 years ago the death of their sister Catherine 32 years earlier is recited. A friend intimate with the family for 52 years had never heard of Catherine.®* Forty-three years. — A brother went to England about 44 years ago and had not been heard from for 43 years. He had threatened to drown himself.'" Forty-three years. — A man over thirty of dissipated habits and aflBicted with a disease regarded as incurable left home and was reported killed in a duel in the West. He knew he would inherit valuable property. His family advertised for him in the city of his last known residence and made other efforts to trace him.'^ Forty-one years. — A son in the habit of writing his mother frequently wrote her in 1846 that he was on his 65. Fowler v. Manheimer, 70 A. D. 56, affd. 178 N. Y. 581, with- out opinion. 66. Casey v. Casey, 19 A. D. 219, rvsg. 19 Misc. 272; Wheeler v. Scully, 50 N. Y. 667. 67. Dworsky v. Arndtstein, 29 A. D. 274. 68. Hornberger v. Miller, 28 A. D. 199, affd. 163 N. Y. 578, without opinion. These cases must be considered as discrediting Cromwell v. Phipps, 6 Dem. 60, s. c. Matter of Bellesheim, 17 S. K. 10; for although the latter showed diligent search, it was merely a fruitless search to establish the identity of the parties. 69. M'Comb v. Wright, 5 Johns. Ch. 263. 70. Same. 71. McNulty V. Mitchell, 41 Misc. 293. Continuity. 365 way home from Missouri via New Orleans. He was never heard from again and inquiries proved fruitless.''^ Thirty-seven years. — A sailor, M, in 1872 went on a voyage from which he never returned. In 1889 a stranger, who described M correctly and told various facts about the family, visited M's mother and stated that he was a shipmate of M who had died in Peru in 1876.^3 Sixteen years. — J, 29 years old, in love with K, was in very bad health, suffering from organic diseases of the liver, kidney and heart. He was in the habit of in- dulging in occasional drinking sprees which had twice been followed by violent hemorrhages of the stomach. He had expressed a desire to die. While seriously ill he heard of K's death, went out into the rain, took an omnibus and was never heard of again. His family searched for him and advertised for him at least three times. He knew he would inherit large property on his father's death.'* In the following cases the presumption was held not to have been established : — Four years. — A tenant by curtesy who disappeared over seven years ago had been seen in Texas within four years. '^ Thirteen years. — R left the country on a whaling ves- sel from which he deserted 15 years ago. He had been in the habit of writing his mother, and his last letter 13 years ago, stated that he had a growth on his eye threat- ening its loss and that he had taken to the bush. Noth- ing had been heard from him since.'',® 72. Terry v. Sampson, 112 N. Y. 415. 73. Johnston v. Garvey, 139 A. D. 659, aflfd. 201 N. Y. 548, on opinion below. 74. Cambrelleng v. Purton, 125 N. Y. 610. 75. Hecker v. Sexton, 6 S. R. 680. 76. McDermot v. McDermot, 3 Abb. Pr. N. S. 451. 366 Notice. Twenty-three years. — A father 47 years old and de- i voted to his family left home for Colorado or Arizona mines. For two years he sent remittances, but since then nothing has been heard of him, nor did advertising seven years later bring any response. The court of appeals, reversing a decision in favor of the title on submission of controversy, commented on the absence of such controlling facts as poor health, desperate cir- cumstances and entering a "territory of peril;" and left the issue open to legal proof.'''' Twenty-four years. — A man 23 years old, unmarried, out of work and in poor health left his home in Pitts- ford and was seen about a week later in Albany in a destitute condition. Nothing had been heard of him since.''^ If the evidence is sufficient to raise the presumption, a judgment that A is dead leaving B, C and D his heirs is conclusive, and references in the papers to unknown heirs throw no doubt on the title.''* 4. Notice. § 533. Knowledge of Defect. — Question Involved. — In most of the cases where notice is discussed, the ulti- mate question is whether knowledge by the vendee of a defect in the title is an excuse for failure by the vendor literally to comply with the terms of the con- tract. This is really a question of contract. WTiat did the parties intend? — what did they really agree to do? 77. Cerf v. Diener, 210 N. Y. 156, rvsg. 148 A. D. 150. 78. Vought V. Williams, 120 N. Y. 253, afCg. 46 Hun, 638. The court says it knows of no case where the presumption of death ■was applied to an absence of less' than 40 years. Since this de- cision there have been two such cases in the court of appeals, as appears above. 79. McQuillan v. McQuillan, 134 Supp. 893, affd. 152 A. D. 910, without opinion. Knowledge. 36T The usual rule in sucli cases is that the written agree- ment must prevail;^ and that surrounding circum- stances may be considered only when the instrument is in itself ambiguous.^ Curiously enough this rule is sel- dom or never referred to in the opinions, and evidence of the surrounding circumstances has been admitted almost as a matter of course. The result is two sets of cases that cannot possibly be reconciled. Broadly speaking the earlier cases held almost unan- imously that the vendor might excuse himself from tendering a marketable title if when the contract was signed the vendee knew of the defect on which he after- wards bases his objection. A few later cases have held with increasing emphasis that such knowledge is no excuse. Both groups of cases are decided largely on what the judges thought the parties intended in those particular instances. Few if any resort to the technical device of excluding evidence of such knowledge, or rely upon the rule of interpretation above stated. § 534. Contract. — A purchaser may contract to buy land the title to which he knows to be doubtful. In such case a quitclaim from the vendor, or his promise to execute and deliver same, is good consideration for the purchaser's promise to pay. The vendee may have had substantial reasons for accepting vendor's quit- claim; and as he agreed to pay for it, he cannot defend even on the ground of complete failure of title.' Still less may a purchase money mortgagee defend on the ground of defective title where he bought at a reduced price because of such defects.* 1. Am. & Eng. Ency. Law (2d ed.), vol. 17, p. 2. 2. Same, p. 23. 3. Bowen v. Bell, 20 Johns. 338 ; Granger v. Oleott, 1 Lans. 169 j Emrich v. White, 102 N. Y. 657, affg. 66 How. Pr. 154. 4. Gouverneur v. Elmendorf, 5 Johns. Ch. 79. 368 Notice. Where the purchaser knows of trifling defects, he will be held in equity to strict compliance with the formalities of tender and demand if he would insist later on a perfect title in fee ; for the vendor may within a reasonable time be able to remove the defects. It would be a substantial fraud on the vendor to insist upon merely technical objections, when the title ten- dered is what vendee expected to obtain; and if ven- dee has not made due tender on his part, vendor may be awarded specific performance without compensation for the defects.^ The purchaser at a sale of premises subject to the rights of certain parties may not afterwards object to the existence of those rights.^ § 535. Effect. — A purchaser who with knowledge of a defect in title contracts to buy will be required to accept title subject to such defecf — he gets what he bargained for. It would be unfair for him to claim compensation for such defect;^ but where part of the premises had actually been conveyed to a third person pursuant to a contract known to vendee at the time of his purchase, vendee was allowed to deduct the price paid by such person.^ It has, on the other hand, been held that a purchaser at judicial sale, knowing that a contingent remainder- 5. Winne v. Reynolds, 6 Paige, 407. 6. Cromwell v. Hull, 97 N. Y. 209. 7. Vedder v. Evertson, 3 Paige, 281 ; Graham v. Bleakie, 2 Daly, 55; Fryer v. Rockefeller, 63 N. Y. 268; Mott v. Mott, 68 N. Y. 246, modifying 8 Hun, 474; Rogers v. James, 24 Hun, 342; Warren V. Hall, 41 Hun, 466; Wetmore v. Bruce, 118 N. Y. 319 (dictum) ; Stephens v. Humphryes, 73 Hun, 199, affd. 141 N. Y. 586, on opinion below; Warner v. Schweitzer, 56 A. D. 623; Dunlop v. Mulry, 83 Supp. 1104, affd. 85 A. D. 498. 8. Warren v. Hall, 41 Hun, 466. 9. Vedder v. Evertson, 3 Paige, 281. Knowledge. 369 man had not been made a party, had the right to buy- knowing and intending to raise the question of title; that it might submit its rights as purchaser to the court, and was not bound to run the risk of losing the property.^" The converse is that such person may be required to complete upon being furnished with re- leases from the omitted parties.^^ A vendee on discovering an apparent defect, as a stranger in possession, may have a reasonable time to investigate the merits.^^ § 536. How Acquired. — It is not material how the vendee's knowledge is acquired. The defect may be notorious, as the reservations in the old Livingston ^* and Van Rensselaer^* leases. The purchase of a salt lease implies that vendee expects to take subject to constitutional and statutory limitation and regula- tion.^s Where a party wall is mentioned in the terms of a ju- dicial sale, vendee receives notice and may not object to the party Wall as an encumbrance.^^ So the purchaser of an interior gore, shown as such, may not object to lack of access.^'' It would seem that the sale of a church pew, on the same principle, would be satisfied by a lease in perpetuity; but it was not so held.^* 10. N. Y. Security & Trust Co. v. Sehoenberg, 87 A. D. 262, affd. 177 N. Y. 556, on opinion below. 11. Miller V. Wright, 109 N. Y. 194. 12. Jencks v. Kearney, 17 Supp. 143 (dictum). 13. Ten Broeek v. Livingston, 1 Johns. Ch. 357. ^ 14. Winne v. Reynolds, 6 Paige, 407. 15. Hasbrook v. Paddock, 1 Barb. 635. 16. Ruhe V. Law, 8 Hun, 251; Driseoll v. Carroll, 127 A. D. 265. 17. Coates v. Fairehild, 14 W. D. 189, affd. 89 N. Y. 631, on opinion below. 18. Foote V. West, 1 Den. 544. 370 Notice. Where the terms of sale included ' ' all right, title and interest of the party of the first part in and to land in said creek in front of and adjoining said premises to the center thereof," the purchasers were held chargeable with notice that the premises were made land which originally lay entirely under water.^^ An ambiguous description in a notice of sale throws on purchaser the burden of ascertaining the area of the premises if he considers same material.^'' Where vendee's attorney makes an unnecessarily thorough examination, as by investigating a canceled lis pendens, the vendee is affected with notice of the facts discovered. Though he might have disregarded the lis pendens altogether, still he had a right to examine the record and vendor must accept the result of his hav- ing done so.^^ The mere fact that vendee had previously accepted a mortgage of the premises is not enough to charge him with knowledge of a gap in the title.'^^ A party to an action who purchases at judicial sale therein is held to the knowledge acquired by him as such party in so far as it affects title.^^ In Miller v. Wright, 109 N. Y. 194, the purchaser who was improp- erly joined as defendant in partition was held not to be estopped by the judgment; but since he knew that D, E and F were improperly omitted, he was ordered to complete upon receiving a release from them. Such purchaser is not bound in regard to matters 19. Van Rensselaer v. Bull, 17 Supp. 117, affd. 133 N. Y. 625, on opinion below. 20. Dennerlein v. Dennerlein, 111 N. Y. 518, affg. 46 Hun, 561, and 14 S. R. 932. 21. Brokaw v. Duiffy, 165 N. Y. 391, affg. 36 A. D. 147. 22. Mahoney v. Allen, 18 Misc. 134. 23. Curtis v. Hitchcock, 10 Paige, 399; Watson v. Church, 3 Hun, 80. Knowledge. 371 outside the action, of wliicli he had no actual knowl- edge — such as the existence of creditors not joined, or a gap in the title.^* § 537. Bona Fides, — Where the vendor's title is ap- parently regular and marketable but facts exist which impeach his authority as trustee to sell, or throwdoubt upon the validity of the title, or create an equity against him as owner, and such facts become known to the vendee, the latter will be relieved from the con- tract. The vendee in such case could not defend the title as bona fide purchaser and should not be required to shoulder the risk of an attack. In Hovey v. Chis- holm, 56 Hun, 326, the executors' power of sale was lim- ited to payment of legacies, and vendee was aware that the executors had sufficient personalty to discharge debts, expenses and all said legacies. In Eeynolds v. Strong, 82 Hun, 202, plaintiff claimed title either under a certain deed or by devise; if title came through the deed it was subject to a mortgage, if by devise it was subject to the claim of a legatee — ^both of which en- cumbrances were known to defendant. In Brokaw v. Duffy, 161 N. Y. 391, vendee discovered that vendor's title was subject to attack by the heirs of his grantor, B, and was informed that suit would be brought imme- diately upon B's death to set aside his deed on the ground of insanity. In none of these cases was the vendee required to complete his purchase. § 538. Partial Knowledge. — The fact that the pur- chaser has knowledge of certain defects does not pre- clude him from objecting to other defects which he did not know.^^ Nor does loose and indefinite knowl- 24. Mahoney v. Allen, 18 Misc. 134. 25. Phillips V. Wilcox, 12 Misc. 382 ; Matter of Tales, 33 A. D. 611, a£Ed. 157 N. Y. 705, without opinion. 372 Notice. edge resulting from a general familiarity with the neighborhood prevent vendee from relying on the terms of sale.^^ § 539. Exceptions in Contract. — The parties knowing of certain leases, taxes and a building restriction en- tered into a contract by which defendants agreed to convey in fee simple free from all encumbrances except said leases and taxes. Plaintiff rejected title on the ground of the restriction, which according to his evi- dence impaired the value of the property |13,000. Plaintiff was allowed to recover for the breach of an express and unambiguous agreement.^'^ A dictum in Bacot V. Fessenden, 130 A. D. 819, lays down the rule in such cases as follows: — Where parties contract for a title free and clear except as to certain specified de- fects, knowing there are other encumbrances, they are presumed to intend the removal of the latter, unless they are easements or others not removable. This again is a rule of interpretation of contracts rather than of evidence — ^that from the mention of cer- tain defects in the contract purchaser is entitled to infer that there will be no others ; and it is not surpris- ing to find the rule applied strictly where the pur- chaser has no knowledge of such others.^* § 540. Visible Defects. — Purchasers are chargeable with knowledge of what is apparent on the premises.^' That a building is in process of erection is apparent;'" but not that the building is 1% in. over the line,^^ or 26. TelLx v. Devlin, 90 A. D. 103. 27. Nathan v. Morris, 62 Hun, 452. 28. O'Neil v. Van Tassel, 137 N. Y. 297;' Matter of Brennan, 21 A. D. 236. 29. Riggs V. Pursell, 66 N. Y. 193. 30. Same. 31. Stokes V. Johnson, 57 N. Y. 673. Visible Defects. 37S even 1 ft. over, for such encroacliment could not be known without a survey .^^ What the buyer learns from looking at the wall of one of a row of city houses is doubtless a question of fact. If thrown off his guard by a description placing the wall wholly within the lines of the premises in question, he may not observe that it is a party wall.^^ But even though the descrip- tion is misleading, beam rights may be quite obvious ;^* and if so, it is vendee's own fault if he does not dis- cover the true condition of affairs.^^ A purchaser who has inspected the premises cannot complain of being misled by a printer's error in repro- ducing the diagram attached to the notice of sale.^^ A railway, whether elevated or surface, is a visible easement, subject to which the premises are sold;''^ provided that such railway is lawfully in a public high- way.^* 32. Acme Realty Co. v. Schinasi, 215 N. Y. 495, affg. 154 A. D. 397. 33. O'Neil V. Van Tassel, 137 N. Y. 297. 34. Kingsland v. Puller, 157 N. Y. 507, rvsg. 31 A. D. 313. 35. Sehaefer v. Blumenthal, 169 N. Y. 221, rvsg. 51 A. D. 517. 36. Francis v. Watkins, 72 A. D. 15. 37. Koepke v. Bradley, 3 A. D. 391, affd. 151 N. Y. 621, on opin- ion below. 38. Pryor v. Buffalo, 197 N. Y. 123. The court says (p. 136) : "It is the settled law of this state that knowledge in the grantee of existing easements does not defeat his right to object to the title except in the case of a public highway and the lawful struc- tures thereon." This seems quite at variance with the weight of authority above cited, but fairly in accord with the general rule of interpretation of contracts mentioned in the first paragraph of this chapter. It will doubtless soon be necessary for the court of appeals to decide the question not by reference to " settled law," when the law leans the other way, but by overruling one group or the other of conflicting decisions. When that time arrives the rule of adhering to the contract will probably be preferred to the rule as stated in the text, supra. Until then the text, supported by the weight of authority, must stand. 374 , Notice. § 541. Public Record. — A matter of public record actually called to vendee's attention and as ascertain- able by him as by vendor, such as the location of a bulkhead line, is chargeable to vendee.^* § 542. Possession. — Possession is notice. Defendant after mortgaging to plaintiff conveyed to S, who con- veyed to Q-, who leased to M. Neither of these deeds nor the lease had been recorded, but M had taken pos- session when plaintiff filed his Us pendens in foreclos- ure. It was held that plaintiff was chargeable with notice of the conveyances and lease, and having failed to make Gr and M parties, could not make marketable title to the purchaser in foreclosure.^" § 543. Judicial Sales. — At a judicial sale the auc- tioneer should announce the character of title to be sold. Where there was a question as to what interests were bound by the mortgage under foreclosure, and plaintiff's attorney • announced that A's interest only would be sold, but the sheriff declared that such an- nouncement was not official, the purchaser's objection that certain other interests were not cut off by the judgment was sustained.*^ "Where the announcement is official, though it varies the notice of sale, the pur- chaser will not be relieved.^^ The case of Pryor v. Buffalo appears to be correctly decided on the facts, as the parties evidently contemplated the removal of the existing tracks by the vendees for the purpose of using the prem- ises themselves for a railway without grade crossings. When it was found after investigation that this could not be done, much of the value of the premises was lost. 39. Interborough Rapid Transit Co. v. Littlefield, 166 A. D. 567. 40. Welsh V. Schoen, 59 Hun, 356. 41. Matter of Tales, 33 A. D. 611, affd. 157 N. Y. 705, without opinion. 42. Stephens v. Humphryes, 73 Hun, 199, affd. 141 N. Y. 586, on opinion below. Agent. 375 § 544. Knowledge of Agent. — Knowledge of defects cannot be imputed to vendee before the closing date, from the fact that they appear in an abstract of title delivered to vendee's attorney; it is not the attorney's duty to report on the title until it is time to close.*^ A title was drawn in question in Todd v. Eighmie, 10 A. D. 142, because no deed could be found from M who owned in 1827. T who claimed title in 1864 brought suit against M 's heirs to compel a conveyance, but did not recover judgment. C was attorney for several of said heirs in that suit. In the same year A obtained a deed not under seal from said heirs, and conveyed to C, who obtained another deed from said heirs, with seal, and conveyed to T who conveyed to defendant. After all these transactions an old deed from M to P, starting another chaiin of title, was re- corded. It was held that C's relation as attorney for- the heirs did not affect defendant's title with notice, imply bad faith or prevent his title from becoming- that of hona fide purchaser. Where a corporation purchasing at foreclosure ac- quired title prima facie good as against the assignee (by unrecorded assignment) of a second mortgage, it is not chargeable with notice of such assignment be- cause its president personally had knowledge thereof.^* 43. Kountze v. Helmuth, 140 N. Y. 432, affg. 67 Hun, 343. 44. People's Trust Co. v. Tonkonogy, 144 A. D. 333. In this case the purchaser was involved in an impudent scheme to delay plaintiff's recovery, and no fault can be found with the decision of the court compelling it to complete. On the question of notice the case is not so satisfactory. It certainly seems as though the knowledge of the president in a transaction within his regular duties ought to be chargeable upon the corporation; and it is hard to believe that defendant T, who sold the second mortgage to X, could procure his company to purchase and then in his corporate capacity defend against X when the latter undertook to foreclose 376 Notice. The court of appeals has announced obiter that when an attorney is employed to examine the title, notice of any facts coming to him in relation to the title and af- fecting it with liens or equities, would be constructive notice to the vendee. But facts held by the trial court to constitute a fraud and conceded by the appellate court to justify the reproach of improvidence on the part of a trustee vendor were adjudged not to give notice to the attorney.*^ § 545. Constructive Notice. — Record Generally. — Where the rec.ord title is complete and satisfactory, no cloud is cast by the appearance of a deed dated earlier than the one relied on but recorded later — as where title is derived through a deed from T to H dated Nov. 6, 1889, recorded Nov. 13, 1889, and the record also shows a deed from T to W dated June 29, 1889, but not re- corded until May 14, 1890.*« A purchaser is not obliged to examine the records at all, and if he does not examine, he is bound by con- structive notice only so far as the statute and rules of law provide — not by other matters he might have learned if he had read all the papers.*'' An instrument not entitled to record is- notice of nothing. So held of a declaration that the owner will convey on request of W, an alien;** a lease executed by an agent without written authority.*' Similarly, a contract of sale, admitted to the records merely to fa- the second mortgage. If such a doctrine is to prevail it will pave the way for more fraud than it prevents. 45. Anderson v. Blood, 152 N. Y. 285, a%. 86 Hun, 244. 46. Jay v. Wilson, 91 Hun, 391, affd. 158 N. Y. 693, on opinion below. 47. Potter v. Sachs, 45 A. D. 454 (dictum). 48. Ludlow V. Van Ness, 8 Bosw. 178. 49. GrifSn v. Baust, 26 A. D. 553. Constructive. 377 cilitate proof, gives no constructive notice;^" nor does an assignment of contract.^^ An assignment for tlie benefit of creditors must be recorded in order to give notice. In counties where the deeds are in charge of a register, the filing of the papers with the county clerk does not give notice.^^ It has been broadly stated that a sheriff 's certificate is not within the recording acts, and though recorded in the county clerk's office it does not give constructive notice.^^ What the case really decided was that after the lien of the judgment and certificate had expired, a deed from the judgment debtor gave good title. It seems quite clear that the purchaser at execution sale should be and is protected during the period of redemp- tion.^* Street opening proceedings, not being of record, do not bind a subsequent purchaser on a question of own- ership litigated between several claimants for the award.^^ The record of an instrument executed by A does not give constructive notice that A has acquired title.^* § 546. Contents of Instruments. — A purchaser on the foreclosure of a lease is chargeable with notice of the contents of such lease.^^ A sale of premises subject to a mortgage of record described by the amount, interest rate and date of maturity gives the purchaser notice of the entire contents of the mortgage; and he cannot t 50. Doll V. Ingram, 8 S. E. 253. 51. Johnson v. Duncan, 2 How. Pr. N. S. 366. 52. Simon v. Kaliske, 1 Sweeny, 304; Wagner v. Hodge, 34 Hun, 524, affd. 98 N. Y. 654, without opinion (dictum). 53. Davidson v. Crooks, 45 A. D. 616. 54. Siegel v. Anger, 13 Abb. N. C. 362. 55. Knapp v. Crane, 14 A. D. 120. 56. Kipp V. Brandt, 49 How. Pr. 358. 57. Eiggs V. Pursell, 66 N. Y. 193. 378 Notice. object to "unusual clauses" therein.^^ Even though the encumbrance so referred to is erroneously described, the purchaser is chargeable with knowledge of the con- tents of the instrument unless misled by the error. So held in Kingsland v. Fuller, 157 N. Y. 507 — where the rule is broadly stated to the effect that a purchaser with knowledge of any fact sufficient to put him on inquiry as to the existence of some right or title in conflict with which he is about to purchase, is presumed, either to have made the inquiry and ascertained the extent of such prior right, or to have been guilty of a degree of negligence fatal to his plea of ignorance. This rule was in Lord v. Crane, 78 Misc. 389, applied to charge a broker with knowledge of an encumbrance on the title shown by a recorded deed of which he had notice. The reference to the encumbrance may, however, be so bare as to be misleading, as where the terms of sale stated merely that it was ' ' subject to a lease to expire May 1, 1884, ' ' while the lease contained the privilege of removing the building, which the lessee proceeded to exercise. In such case it was held that fair dealing re- quired mention of such a material and unusual clause, and the foreclosure purchaser should not be required to complete.^' Reference in the terms of sale to a party wall throws on the purchaser the duty of obtaining information about the easement.®" § 547. Record in Wrong Boole. — According to a dictum in Abraham v. Mayer, 7 Misc. 250, record in the wrong book is not constructive notice. In Droge v. Cree, 58. Feist v. Block, 115 A. D. 211; Schnitzer v. Bernstein, 119 A. D. 47; Baucher v. Stewart, 136 A. D. 844; Feltenstein v. Ernst, 49 Misc. 262, affd. 113 A. D. 903, without opinion. 59. Beckenbaugh v. Nally, 32 Hun, 160. 60. Driscoll v. Healy, 147 A. D. 522. CONSTEUCTIVB. 379 59 Super. 271, the deed was recorded in a book entitled "Record of Deeds, No. 1, Rural Cemeteries," and never found its way into the regular conveyance series. The court, taking the curious view that grantor's execu- tors could convey only what testator died seized of, declined to pass on the effect of the record. § 548. Index. — Indexing an instrument against a party by description where the name is known, does not give notice ; the index must be by name. So held where the lis pendens named D J and M J, his wife, and the clerk indexed not against M J, but only against D J and wife.'^^ % 549. Recitals. — References in the contract to ven- dor's deed and further references in such deed may be sufficient to give constructive notice of an outstanding right.^" A recital in a deed of a prior sale of a portion to B, C and D is sufficient to give notice of conveyances to them, through none have been recorded or can, be found; it creates a doubt which makes title unmarketable.^' The language of a devise may be sufficient to show that the life tenant has such an interest as trustee or as donee of a power in trust as to preclude her from pur- chasing individually.^* Eecitals in a deed over sixteen years old, and testi- mony taken in a foreclosure suit ten years ago may serve as prima facie evidence of devolution of title by de- scent.^^ The recital of a contemporaneous deed in a 61. Hartwell v. Riley, 47 A. D. 154. 62. Merritt v. Lambert, Hoff. 166. 63. Dingley v. Bon, 130 N. Y. 607, affg. 5 Silv. Supm. 510, which aflSrm'ed judgment for defendant, not for plaintiff, as stated. 64. Gardner v. Dembinsky, 52 A. D. 473, affd. 170 N. Y. 593, without opinion. 65. Block V. Braun, 116 A. D. 923. 380 Notice. purchase money mortgage is effective except as against bona fide purchasers depending on the prior record.^" The recital in a recorded instrument of another not recorded is not constructive notice f and the mere ref- erence in vendor's title policy, exhibited to vendee, to liber and page where a restrictive covenant is recorded, is far short of notice thereof on which to base an action' to reform the contract.^* § 550. Lis Pendens, — Where all necessary parties are served in the foreclosure suit, and no liens have accrued, nor any changes of title taken place during the suit, ir- regularities in the lis pendens are immaterial."^ The filing of the lis pendens is not jurisdictional; but wher-e there were judgments against the mortgagor and the judgment creditors were not served in the action, nor was a notice filed conforming to the requirements of the Act of 1840, chapter 342, such creditors are not charge- able with constructive notice so as to cut off their liens.™ Under the Code of Procedure, §§ 132, 137 and 139, as originally enacted, the lis pendens became effective against the owner of the equity only from' the time of service upon him.''^ The effect of the lis pendens continues until time to appeal has expired. A grantee who takes after dis- missal of the complaint is cut off by judgment entered after reversal of the original judgment upon appeal; nor is it necessary to join him in the action.'^ 66. Todd V. Eighmie, 4 A. D. 9. 67. Same; People's Trust Co. v. Tonkonogy, 144 A. D. 333. 68. Roussel v. Lux, 39 Misc. 508. 69. Totten v. Stuyvesant, 3 Edw. 500. 70. Curtis V. Hitchcock, 10 Paige, 399. It will be observed that the Act of 1840 was much more comprehensive than Code Civ. Proc, 5 1671. 71. Butler v. Tomlinson, 38 Barb. 641. 72. Weyh v. Boylan, 62 How. Pr. 397, affd. 63 How. Pr. 72, on opinion below. Constructive. 381 Constructive notice under a lis pendens is conveyed, only so long as the action is prosecuted with due dilig- ence. Failure to proceed for twenty-six years is such laches as to bar plaintiffs from further prosecution, and to deprive the lis pendens of vitality.^^ A Us pendens gives notice only of proceedings in the action in which it was filed ; such notice does not extend to outside unconnected claims.'^* It does not charge a purchaser in foreclosure with notice of the reason why a "subsequent lienor" was made defendant.'''^ § 551. Contemporaneous Deeds. — Where two deeds are recorded on the same day, or one very shortly after the other, and the second grantee is a party who could not have taken a conveyance directly from the first gran- tor, it has been held that the presumption arises that the intermediate grantee is a mere dummy, and subse- quent purchasers have notice that the transaction was 73. Hayes v. Nourse, 114 N. Y. 595. The opinion in this case is misleading. The claimants began suit in 1836, took proofs clos- ing in 1838, and did nothing further except substitute attorney in 1844. In 1854 P purchased and in 1864 first learned of the suit. Defendant, taking'title in 1^84, had knowledge of the suit, and the question as stated by the court (p. 606) is whether P was a hona fide purchaser. If he was, the court holds, the knowledge of sub- sequent grantees becomes immaterial. P's good faith must be measured at most by the facts existing when he acquired actual knowledge in 1864, a period when the litigation had been actually dormant twenty years and virtually dormant six years more, or twenty-six years at the outside. There is no reason, and the court suggests none, for measuring to 1885, the date of the contract be- tween plaintiff and defendant; and consequently the decision can- not be based upon the situation at that date. The reasoning of the court applies, though somewhat less strongly, to the situation in 1864; and as there is no ground for supposing that the result would have been changed, the ease is cited for what it decides. 74. Todd V. Eighmie, 10 A. D. 142. 75. Baeeht v. Hevesy, 115 A. D. 509. 382 Notice. not made in good faithJ^ The recent case of Wein- traub V. Siegel, 133 A. D. 677, takes diametrically the opposite view, so that the question may be considered still open. § 552. Statute. — Parties are bound to take notice of public statutes.''^ § 553. Bona Fide Purchaser. — A person having no knowledge of an unrecorded deed made by the record owner may purchase from him for value and upon re- cording his deed gets marketable title. There is noth- ing suspicious in such purchaser taking a quitclaim.'^'' Where the instrument objected to as impairing the title was not recorded until eleven years after its execution, vendee must produce some evidence that intervening purchasers had knowledge of its existence, or they will be considered to have taken title in good faith.'^^ The following facts do not give notice of fraudulent in- tent : — A deed of premises made by a person financially embarrassed and of intemperate habits followed on the same day by a declaration of trust by the grantee in favor of certain of grantor's creditors, the surplus to be applied to his children; — for it will be presumed that grantor had other property.^" A deed adjudged in a creditor's suit void as to the creditors of H be- comes valid after such lapse of time that the rights of the creditors to further relief are barred.®^ A pur- chaser M whose deed lacked a seal was held to acquire 76. McPherson v. Smith, 49 Hun, 254; Stokes v. Hyde, 14 A. D. 530 ; Toole v. McKiernan, 48 Super. 163. 77. Hasbrook v. Paddock, 1 Barb. 635. See also § 541. 78. Wilhelm v. Wilkin, 149 N. Y. 447, affg. 75 Hun, 552. 79. Cromwell v. Hull, 97 N. Y. 209. 80. Jacobs V. Morrison, 136 N. Y. 101. 81. Knapp v. Crane, 14 A. D. 120. Constructive. 383 an equity superior to that of the holder of an unre- corded deed; and when M's grantee, C, obtained and recorded a sealed deed from the original grantors, he perfected his title as bona fide purchaser.*^ A party who has discovered the defects before taking title cannot be protected as iona fide purchaser.*^ A grantor whose deed has not been recorded is in posi- tion to give good title to an innocent purchaser; conse- quently when his interest is foreclosed, the purchaser is regarded as bona fide, if when the action began he had no knowledge of the deed. So held of the assignor of a mortgage.^* An executor with power of sale, it has been held, cannot give title to a bona fide purchaser as against a prior unrecorded deed by testator;^" but the reasoning is not convincing, as it ignores the entire pur- pose of the Eecording Acts. § 554. Subsequent Title, — If title once vests in a bona fide purchaser, it can be conveyed by him without impairment even to a person knowing the adverse claim.^* An undivided fraction of the title so vesting makes the whole title good.^'' It is not necessary to join the claimants in a fore- closure of the bona fide purchaser's mortgage. The purchaser at foreclosure sale will get good title not open to question unless transferred again to the actual parties to the adverse transaction.^* 82. Todd V. Eighmie, 4 A. D. 9. 83. Curtis v. Hitchcock, 10 Paige, 399. 84. People's Trust Co. v. Tonkonogy, 144 A. D. 333. 85. Droge v. Cree, 59 Super. 271. 86. Hayes v. Nourse, 114 N. Y. 595. 87. Doremus v. Doremus, 66 Hun, 111. 88. Abraham v. Mayer, 7 Misc. 250. CHAPTER IX. RECORD OF TITLE. 1. Record Title. § 560. Recording Acts. — Statutes. — ^The modern sys- tem of recording instruments affecting real estate has been so long in vogue and is so familiar that compara- tively few questions arise directly involving the Ee-' cording Acts. That an unrecorded deed is void as against a subsequent purchaser in good faith, who may perfect his title by first recording the subsequent deed from the same grantor, is merely repeating the statute.^ An instrument recorded, but not required by the statute to be recorded, does not give constructive notice; the only effect of such record is to preserve evi- dence.^ The county clerk is not required to sign the record; and his failure to note the time of receipt does not af- fect title.* Occasionally a title raises some question upon a deed executed before the Recording Acts. Of such a title it was said that there was no practice at that time to put deeds on record, and that it was sufficient for vendor to show a prima facie title, against which there was no reasonable ground of suspicion; leaving the purchaser to establish it by ordinary proof, if it should ever be contested.* But it was afterwards held to be a doubt- 1. Baecht v. Hevesy, 115 A. D. 509; Wilhelm v. Wilkin, 149 N. Y. 447, a%. 75 Hun, 552. 2. Boyd V. Schlesinger, 59 N. Y. 301 (dictum). 3. Thorn v. Mayer, 12 Misc. 487. 4. Matter of Browning, 2 Paige, 64. ~ (384) Recoed Title. 385 ful question whether such deed remaining unrecorded was not affected by the Recording Act ; and so recently as 1904 a title was adjudged upon that ground to be un- marketable.^ § 561. Instruments. — It was said in 1840 that there was no law requiring a sheriff's certificate of sale to be recorded;* but this has been changed by statute.'' A contract of sale is not required to be recorded;* nor is an assignment of mortgage.® Where title is derived by descent it is not held in sus- pense for four years by the statute requiring wills to be recorded within that period. The non-existence of the will may be established by satisfactory proof.^" § 562. Extent.— Other Records.— A "record title" may and usually does consist of other documents than official copies of instruments provided for by the Re- cording Acts. Papers such as lis pendens ^^ and the entire judgment roU,^^ properly filed in legal proceed- ings, become part of the record. So does testimony taken in legal proceedings.^' In fact any evidence of title which can be recorded is available to support a title as a record title.^* 5. Felix V. Devlin, 90 A. D. 103. 6. New York Life Ins. & Trust Co. v. Bailey, 3 Edw. 416. 7. Code Civ. Proe., § 1439. 8. Boyd V. Schlesinger, 59 N. Y. 301 (dictum). 9. Fryer v. Rockefeller, 63 N. Y. 268; Krekeler v. Aulbach, 51 A. D. 591. 10. Spring v. Sandford, 7 Paige, 550. 11. Zorn v. McParland, 8 Misc. 126 (dictum), affd. 11 Misc. 555, affd. 155 N. Y. 684, without opinion. 12. Moot v. Business Men's Investment Assn., 157 N. Y. 201, rvsg. 90 Hun, 155. 13. Plaut v. Moores, 142 N. Y. 646. J4. Oppenheimer v. Humphreys, 9 Supp. 840, affd. 125 N. Y. 733, on opinion below. 386 Record Title. An instrument recorded in the wrong book does not come within the statute so as to give constructive notice as is elsewhere pointed out, but it seems to have been taken for granted as part of a marketable title.^^ § 563. How Far Required. — The theoretically perfect title would doubtless be one which showed each link in the chain completely by documents duly recorded pur- suant to law and papers properly attached to judgment rolls. Since however such perfect titles do not exist,, the practical question is how much of such record may be missing without raising a reasonable doubt. A com- plete break in the chain is always serious;^® and even a devolution of title by descent may be so far devoid of documentary evidence as to make title doubtful.^^ A lost map which contained the only accurate des- cription of the premises also rendered title doubtful.^* It is sometimes loosely said that a purchaser is en- titled to a title of record,^^ or more accurately that where there is a defect in the record which can be sup- plied only by resort to parol evidence, and the title may depend upon questions of fact, the general rule is that purchasers will not be required to perform.^"^ This is at any rate so far correct as to impose upon vendor the duty of recording all deeds in the chain in his possession, or delivering them to vendee.^^ 15. Morrison v. Brand, 5 Daly, 40. See § 547. 16. Osgood V. Franklin, 2 Johns. Ch. 1; Coray v. Matthewson, 7 Lans. 80; Faile v. Crawford, 30 A. D. 536 (dictum); Abrams v. Ehoner, 44 Hun, 507; Lese v. Metzinger, 54 Misc. 151. 17. Wanser v. DeNyse, 188 N. Y. 378, rvsg. 116 A. D. 796. 18. McPherson v. Schade, 149 N. Y. 16, affg. 8 Misc. 424. 19. Coray v. Matthewson, 7 Lans. 80; Oppenheimer v. Hum- phreys, 9 Supp. 840, afld. 125 N. Y. 733, on opinion below. 20. McPherson v. Schade, 149 N. Y. 16. 21. Darrow v. Cornell, 30 A. D. 115. How Fae Required. 387 Whether a wall is a party wall ought to appear of record.^^ ^ A purchaser tendered a title by devise may demand record of the proof and establishment of the will by de- cree — something more than the surrogate 's informal in- dorsement thereon, "Admitted 9/7/72. "^^ But he may not insist that judgments discharged in bankruptcy be canceled of record.^* It is held in Mandel v. Hopkins, 160 A. D. 872, that simultaneous deeds from A to B and from B to A, ident- ical in date and record, require explanation. An error in the complaint and judgment in partition is satisfactorily cured by an order of amendment made part of the judgment roll. Vendee might have required such order to be recorded ; but in any event the title does not depend upon parol.^^ Where the premises are sold subject to a mortgage at 5 per cent, payable in 5 years and the mortgage is made merely to secure interest as in the bond, which though not of record is in accord with the contract, the title is marketable.^" Vendee objected to title derived through condemna- tion, under a statute providing that title should vest in the city upon payment to the owners, because there was no record of such payment. Eeceipts on file signed by A, attorney for B, owner, and by C, assignee of D, an- other owner, were held sufficient to sustain the title without proof of A's authority or C's assign- ment.^'^ B,ut the opposite result was reached upon 22. Timmermann v. Colin, 204 N. Y. 614, rvsg. 146 A. D. 924, also 70 Misc. 327. 23. Thorn v. Shell, 15 Abb. Pr. N. S. 81. 24. Grosso v. Marx, 45 Misc. 500. 25. Moot V. Business Men's Investment Assn., 157 N. Y. 201, 211 and 212 (dictum), rvsg. 90 Hun, 155. 26. Halpern v. Fisch, 116 A. D. 479. 27. Seitz V. Groves, 99 A. D. 629. 388 Eecokd Title. the following facts: — Vendor in order to show a reduction and extension of an existing mortgage pro- duced an assignment of same to R as trustee for A and an agreement acknowledging payment of $2000 and extending the balance executed by "A per B atty. ' ' This was held insufficient both as to B's authority and the legal ownership by A.^* It should be observed that in the first case there was no reason to question the in- ference claimed by vendor; while in the second there ex- isted a prima facie defect in the title which it was ven- dor's duty to explain. The two cases therefore are en- tirely consistent. Where public records, such as those of the building de- partment, show that there is no cause of action under a lis pendens, the existence of the notice uncanceled is no defect in title.^^ A conveyance in trust by B apparently created an ir- revocable estate in her children. She was in fact an in- fant at the time of executing the deed, and vendor ten- dered on the closing day another deed executed by her to vendee. It was held that vendee was entitled to rely on the record; that if vendor depended on B's infancy to avoid the first deed, he should have communicated the fact to vendee.^" A mortgage to Gauld was recorded as running to Garred, and the register refused to cancel it of record upon the production of a satisfaction piece executed by Gauld. It was held that vendee could not be required to take title while the mortgage was still open of rec- ord.'^ 28. Piza V. Lubelsky, 121 A. D. 734, and see 195 N. Y. 586. 29. Alpern v. Farrell, 133 A. D. 278. 30. Dominick v. Michael, 4 Sandf . 374. 31. Zorn v. McParland, 11 Misc. 555, affg. 8 Misc. 126, affid. 155 N. Y. 684, without opinion. Reliance Upon. 389 § 564. Reliance Upon. — Where the record title is clear and correct, vendor is entitled to rely thereon. The court will not indulge in speculation in the absence of facts to establish contradictory or suspicious conclu- sions.^^ The record showed an open judgment against E, docketed September 15, 1897. R conveyed September 13, 1897, and although the deed was not recorded until May 22, 1899, the title was held prima facie valid, req\tiring no explanation, as the judgment on its face was no lien.^^ In 1844, W conveyed to P who in 1845 conveyed to H from whom, by mesne conveyances all duly recorded, plaintiff derives title. In 1868 it was adjudged in a partition suit, to which however neither H nor her suc- cessors in title were parties, that M had acquired P's interest. Such judgment was held no cloud upon plain- tiff's title.3* A deed recorded after the filing of a Us pendens, though executed prior thereto, is cut off by the judgment in the action ; nor is it necessary that grantee should be made a party to the suit.^^ But where the deed is re- corded first a lis pendens against grantor is ineffec- tual.8« 32. Braun v. VoUmer, 89 A. D. 43. The owner conveyed to the second mortgagee who thereupon executed an instrument agreeing upon payment within 15 months of the exact amount then due to convey to the original mortgagor. He did not so convey, but con- veyed to vendor. It was held that the second mortgage merged, the mortgagor had obtained a mere option, the record was clear and vendor's title was not doubtful. 33. Eussell v. Wales, 119 A. D. 536. 34. Hartigan v. Smith, 19 A. D. 173. 35. Ostrom v. McCann, 21 How. Pr. 431; Earle v. Barnard, 22 How. Pr. 437. 36. Zorn v. McParland, 8 Misc. 126 (dictum). 390 Eecord Title. Where a mortgage has prima, facie merged in the fee, title is not rendered doubtful by the fact that an assign- ment of the mortgage would be valid without record- ing.^'^ The very recent case of Rose v. Adler, 165 A. D. 921, weakens the foregoing rule to the extent of holding sus- picious the appearance upon the record one day of a deed and the following day of a mortgage antedating the conveyance. It is suggested that the grantee may have had actual notice, and the intervention of a "chain of title" between him and defendant does not seem to have been given any weight. § 565. Establishing the Record. — Authentication. — Where an instrument is executed outside the state, or in a county other than where it is to be recorded, it is the vendor's duty to have the proper certificates attached en- titling it to immediate record — a county clerk's certifi- cate for the acknowledgment taken in a different county ; a secretary of state's certificate for the acknowl- edgment taken before a New York commissioner out- side the state.^^ Failure to authenticate such commis- sioner's signature makes the title unmarketable.'^ A county clerk's certificate need hot be dated; it may be read with the acknowledgment in order to identify the person referred to and his office ; its recital of seal is sufficient evidence thereof to overcome the failure of the record to show same, in the absence of positive evidence that no seal- was affixed.*" 37. Krekeler v. Aulbach, 51 A. D. 591, affd. 169 N. Y. 372, on otlier grounds. 38. Smith v. Smeltzer, 1 Hilt. 287. 39. Williamson v. Banning, 86 Hun, 203. The fact that the deed had become ancient was disregarded. 40. Thorn v. Mayer, 12 Misc. 487. Authentication. 391 A deed intended for record in another state must be authenticated as required by the laws of that state.*^ The proper exemplification of documents executed outside the state is often a bothersome practical mat- ter, for officials accustomed to a less technical construc- tion of documents than prevails in New York often fail to certify separately and categorically each fact re- quired by the statute. While it may not be safe to rely upon a liberal attitude of the court to help out other ex- emplifications, the following certificate was sustained: "State of Ohio, I Warren County,) "I, J M W, clerk of the probate court within and for said county, do hereby certify that J C D befop whom the above affidavit was taken, is sole judge of the probate court in and for said county, duly qualified and commissioned as such, and that said affidavit before him taken and acknowledged is in due form of law. "Witness my hand and the seal of said court," etc. There was also a certificate by the judge that the clerk was clerk, etc. It was objected that the clerk's certifi- cate did not state the genuineness of the judge's signa- ture or the existence pf the court. The court thought the general presumption of regularity sufficient to cover the omission. The same court also in the same case decided that a verification containing a venue and the recital "per- sonally appeared before me, J C D, judge of the pro- bate court within and for said county" — sufficiently stated the place where the affidavit was taken.*^ 41. Grillenberger v. Spencer, 7 Misc. 601. 42. Rogers v. McLean, 11 Abb. Pr. 440, rvsg. 31 Barb. 304, affd. 34 N. Y. 536. The statute under consideration was 4 R. S. (4th ed.) 641, 4 25, since repealed. It does not appear that the last 392 Eecoed Title. § 566. Foreign Probate. — A will executed in con- formity with the laws of New York and probated in an- other state may be recorded in New York with an ex- emplified copy of the proofs taken upon such probate. It is not necessary that such proofs should conform to those required for probate in New York; it is sufficient - that they contain evidence from which the execution may be shown, as for example the testimony of one wit- ness though without accounting for the absence of the others.*' But where such proofs do not contain evi- dence of execution within the New York requirements, as where they do not show that the witnesses signed at the request of the testator, they are insufficient to es- tablish the record in this state ;** nor is the foreign rec- ord helped by testimony taken and filed after pro- bate.-'s A foreign judgment that the will was void may de- stroy the prima facie effect of the foreign probate rec- ord.** § 567. Service of Process. — Proof of service of process ought to be contained in a judgment roll, but its ab- sence may be supplied by presumption.*'' It is not necessary when defendant has answered.** objection was made under any act of congress as stated by the court; but the New York statute above cited required the place where the oath was taken to be stated. 43. Bromley v. Miller, 2 T. & C. 575; Bradley v. Krudop, 128 A. D. 200. 44. Lockwood v. Lockwood, 51 Hun, 337, affg. 2 Snpp. 224. 45. Meiggs v. Hoagland, 68 A. D. 182, and see 80 A. D. 632, and 41 Misc. 4, affd. 93 A. D. 617, affd. 185 N. Y. 572— -a rather tech- nical and subtle distinction. 46. Clemens v. Clemens, 60 Barb. 366, affd. 37 N. Y. 59. 47. Sisco V. Martin, 61 A. D. 502. So held of a surrogate 's court. Too much reliance should not be placed upon this case in view of the well established rule that jurisdiction is not presumed in favor of a court of limited jurisdiction. 48. SchoUe v. Scholle, 55 Super. 468, adding obiter that juris- Search. 393 § 568. Master's Report. — A purchaser on foreclosure in chancery objected that the master's report did not state the proofs. taken before him. It was held that the requirement for filing proof was not jurisdictional as against a resident.** § 569. Search. — Abstract of Title. — Vendor is not re- quired to furnish proof of title.^" When the contract calls for a "search truly showing the condition of the title, ' ' a search consisting merely of an abstract of the indexes of records in the county clerk's office, if ac- cepted by vendee, is sufficient. After receipt of such search it became vendee 's duty to examine every deed and instrument forming part of it, especially if record- ed, and to know every fact disclosed or to which an in- quiry suggested by the record would have led; his at- torney was bound to exercise reasonable care and dili- gence to ascertain the true title, and could not rest upon an obvious error of description in a partition suit which had in fact been corrected by an order duly filed." A vendor who has agreed to furnish a search must do so before he can sue on the contract.^^ A vendee who furnished the abstract of title from which vendor worked to mend his title was allowed the expense of procuring same.^* diction of a court of general powers is presumed even against an infant. It would hardly be safe to rely upon this special term dictum to-day in view of the increasingly strict application in marketability eases of the rule that nothing is presumed against an infant. 49. Totten v. Stuyvesant, 3 Edw. 500. 50. Pahner v. Hudson Valley Ey. Co., 134 A. D. 42. 51. Moot V. Business Men's Investment Assn., 157 N. Y. 201, rvsg. 90 Hun, 155. 52. Werner v. Noeth, 161 A. D. 911. 53. Ranger v. Yates, 207 N. Y. 698. 394 Record Title. The abstract of title required in partition is sufficient ■ if it traces title back to a partition deed reciting that tbe parties (through whom claim all parties to the ac- tion) are seized in fee simple.^* § 570. Tax Search. — The description used in tax returns is apt to be entirely different from the ordinary phraseology of conveyancing. It is the duty of a ven- dee who asserts that the tax returns disclose liens upon the premises to identify the two descriptions.^^ § 571. Name. — Idem Sonans. — The names Schutz and Schultz are idem sonans.^^ Wilds and Wilder, though not idem sonans, are so similar as to make the inference almost conclusive that the same person was intended when the discrepancy is over twenty years old and there has been no adverse claim. With the testimony of the commissioner who took the acknowledgment that Wilds was intended as grantee, coupled with a contemporaneous purchase money mortgage executed by Wilds, objection to the name Wilder as grantee be- comes merely captious. ^'^ June and Jayne are not idem sonans f^ nor are Shields and Shell; ^® but such errors are amendable and may be convincingly explained by affidavit if the title is otherwise regular. § 572. Champertous Deeds. — A deed by a grantor out of possession is void as against a party in pos- session claiming adversely and has no effect upon the 54. Bergen v. WyckofE, 1 Civ. Proc. 1. 55. Ainslee v. Hicks, 13 A. D. 388, alEd. 153 N. Y. 643, on opinion below. 56. Veit V. Schwob, 127 A. D. 171. 57. Hellreigel v. Manning, 97 N. Y. 56. 58. Coleman v. Bruch, 132 A. D. 716. 59. Thorn v. Shell, 15 Abb. Pr. N. S. 81. Deeds. 395 latter 's title.^" The true chain accompanied by posses- sion may not be disturbed by such champertous con- veyances.'''- But such a deed, though not good as the basis of an adverse claim, is good to fortify title in an owner in possession. *^ 2. Formal Requisites of Deed. § 573. Form. — ^A contract for the sale of realty is satisfied by the owner's tender of a quitclaim.^ A very early case, looking at the form rather than the sub- stance of the transaction, stated that the quitclaim need not even convey clear title, as where vendor 's wife refused to join;^ but the theory on which that dictum was based, has long been repudiated.^ It has also been suggested (obiter) that when a contract calls for a *'deed of conveyance in fee simple," a better estate would seem to be contemplated than what a quitclaim would convey* — though what the court had in mind in making this suggestion is not apparent. Where the vendor knows, that the vendee does not intend to accept a quitclaim, but expects a good warranty deed, the vendor may not trick him into a contract for a deed with covenant against grantor 's acts only.^ The status of a quitclaim was authoritatively settled by Wilhelm v. Wilkin, 149 N. Y. 447, a%. 75 Hun, 552, holding that it operated as a conveyance by bargain 60. Baecht y. Hevesy, 115 A. D. 509. 61. Kidansky v. Peltyn, 118 A. D. 906. 62. Fryer v. Eoekefeller, 63 N. Y. 268. In efieect this was a deed of correction. 1. Van Eps v. Schenectady, 12 Johns. 436. 2. Ketchum v. Evertson, 13 Johns. 359 (dictum). 3. See U 50, 56. 4. Penfield v. Clark, 62 Barb. 584. 5. Barlow v. Scott, 24 N. Y. 40 (dictum). 396 Deeds. and sale, and under the protection of the Recording Act, cut off a prior unrecorded warranty deed. No particular form of words is necessary to release inchoate dower. Husband and wife joined in an instru- ment purporting to grant, bargain, sell, alien, remise, release, convey and confirm the premises together with all and singular the tenements, hereditaments and ap- purtenances thereunto belonging or in anywise apper- taining, and the reversion, remainder, rents, issues and profits thereof, and also all the estate, right, title, inter- est, property, possession, claim and demand whatso- ever, as well in law as in equity of the parties of the first part of, in and to same; it was held that the wife was so plainly estopped that the title could not be con- sidered doubtful.* Neither the verbiage of the old form of conveyance nor the exact language of the statutory short form is required in order to convey the fee. A widow evidently supposing she held title as tenant in common with her deceased husband's heirs joined with them in deeds which purported to grant, release, convey and quit- claim all the dower and thirds and all right and title of dower and all my other right. The court found that she actually owned the fee as surviving tenant by the en- tirety and conveyed same by the above instrument as effectually as by a formal quitclaim.'' A contract for conveyance by warranty deed, made by a person not owning the premises, may be fulfilled by a deed by the owner without covenants accompanied by covenants executed by the vendor.^ 6. Gillilan v. Swift, 14 Hun, 574. 7. Veit V. Dill, 78 Hun, 171. The instrument was apparently executed before the enactment of the Short Tonn Law. 8. Mayer v. McCune, 59 How. Pr. 78 (dictum) ; Maedonald v. Bach, 51 A. D. 549, affd. 169 N. Y. 615, on opinion below; Robb v. Montgomery, 20 Johns. 15. Parties. 397 Tlie vendor who agrees to give a warranty deed can- not escape his obligation personally to warrant the title. A warranty deed by his grantees, B and C, to whom he had conveyed by bargain and sale deed, does not fulfill the contract.* A referee's deed should state whose interest is sold.^" An executor's deed need not recite the will.^^ In Smith V. Coffin, 34 Hun, 635, it seems to have been con- sidered unnecessary for the executor's deed to recite the existence of facts upon which the validity of tlie sale depended; but such recital is unquestionably the better practice. § 574. Parties. — The grantee must be plainly de- scribed and capable of taking. Where the grant is to A "and his associates," the word "associates" does not answer the foregoing requirement and may be dis- regarded.^^ A party need not be actually named if plainly designated, as in a grant to E B M "and his wife."" In the absence of the word "as," the designation of the grantee as "B, executor " or "B, trustee " is mere descriptio personae; the deed vests title in B individ- ually." It has been held that even where the grant was to " G as trustee of A and B, sometimes heretofore improperly designated administrator of said parties," habendum 9. Walter v. De Graaf , 19 Abb. N. C. 406. 10. Eandell v. Von Ellert, 12 Hun, 577, rvsg. 54 How. Pr. 364; Code Civ. Proc, § 1244. 11. Doody v. HoUwedel, 22 A. D. 456. 12. Ennis v. Brown, 1 A. D. 22. 13. McArthur v. Weaver, 129 A. D. 743. 14. Pfeiflfer v. Eheinfrank, 2 A. D. 574;' Van Schaick v. Lese, 31 Misc. 610; Kanenbley v. Volkenberg, 70 A. D. 97; Title Guarantee & Trust Co. V. Fallon, 101 A. D. 187. 398 Deeds. to "party of the second part and assigns, to his and their only proper use," the record showed no active trust.^5 Where both D and E, her husband, are recited in the deed as parties of the second part, but the grant and habendum are each "to D, her heirs and assigns," title vests in D alone.^^ Where the grantee is described in a misleading man- ner, as "F H F of New York and F H F of Under- cliff" when there was but one F H F, an infirmity of title results which may be cured by a correction deed.^''^ § 575. Consideration. — Love and affection for the children of a nephew does not raise such meritorious consideration as to support a convenant for future con- veyance, or prevent the instrument from being vol- untary.^* The recital of a consideration does not prevent proof of the actual consideration, whether same was wholly lacking,^* or was valuable,^" or executory.^^ A religious corporation in an embarrassed financial condition obtained leave of court to convey its real es- tate subject to existing encumbrances upon payment by the grantee of grantor's floating indebtedness, amount- ing to about $300. It does not appear that the grantee assumed or agreed to pay the encumbrances; but ap- parently it did pay the assessments, and the mortgage merged. The transaction was sustained as bona fide and for a valid consideration.^^ 15. Seidelbach v. Knaggs, 44 A. D. 169, affg. 27 Misc. 110, afid. 167 N. Y. 585, without opinion. 16. Hardie v. Andrews, 13 Civ. Proc. 413. 17. Lynch v. Rogers, 150 A. D. 311. 18. Hayes v. Kershow, 1 Sand. Ch. 258. 19. Same. 20. Baylis v. Stimson, 110 N. Y. 621, affg. 53 Super. 225. 21. Bowen v. Bell, 20 Johns. 338. 22. Lynch v. Pfeiffer, 110 N. Y. 33. Description. 399 The grantor cannot require the grantee to accept a deed expressing a consideration different from the actual consideration.^* Where the contract refers merely to a valuable consideration, not disclosing the amount, a deed expressing a consideration of |25 is sufficient.^* Failure to express any consideration at all was au- thoritatively held objectionable in Fryer v. Rockefel- ler, 63 N. Y. 268, as it creates a record title open to pos- sible attack by later claimants from the presumptively voluntary grantor. § 576. Description. — Sujficiency of. — The southerly half of premises may be ascertained by a line drawn from the middle of the eastern to the middle of the wes- tern boundary line and dividing the property into two plots of substantially equal area. When this can be done, it is no objection that such line runs through a small coal shed.^' The house and lot of ground we now occupy, a full description of which will be found in deeds accompanying this, is a sufficient description to make the title marketable.^* In a somewhat complicated description of an irreg- ular plot bounded in part by two streets, a building and a fence, the purchaser objected because certain lines ran parallel "or nearly so" with the streets, and others at right angles to them "or nearly so." De- fendant 's surveyor testified that there was no difficulty in locating the premises; and it was held that a des- cription sufficient for a surveyor is adequate.^'' No. 127 P St., cont'g 25 ft. x 100 ft., sufficiently iden- 23. Miller v. Ball, 64 N. Y. 286. 24. Haekett v. Huson, 3 Wend. 249. 25. Knapp v. Conger, 59 N. Y. 635. 26. Campbell v. Morgan, 68 Hun, 490. 27. Pope V. Levy, 54 A. D. 495, appeal dismissed, 170 N. Y. 591. 400 Deeds. tifies the premises. No particular starting point is nec- essary in order to describe it by metes and bounds.^* Nor is a description by metes and bounds always neces- sary in order to make marketable title.^^ The following was held too vague: — The most southerly 20 a.- of M farm bounded northerly by re- mainder of said farm, easterly by B Ed, southerly by L estate, westerly by P Rd.^" It was held in an early case that v/here lots were sold at auction by number, referring to a map which gave no dimensions, the purchaser could not in- sist upon having the dimensions inserted in the deed.*^ The merit of this decision is open to question. § 577. Clerical Errors. — The omission of part of the description of a line is not necessarily fatal. In a 4- sided plot the lines ran (3) to land owned by A, (4) thence westerly along said strip of land ovmed by A and W Street 124 ft. more or less to the beginning. A deed in the chain omitted the words in italics. It was held that as the length of the fourth line was given and it would have to be measured westerly to reach the be- ginning, nothing essential was lacking.*^ A will devised to plaintiff the house and lot No. 97 O Street, Brooklyn. On defendant's refusal to accept plaintiff's deed of No. 79 O St., plaintiff proved that testator owned No. 79 and no other real estate, and the title was held marketable.^^ A substantial clerical error in measuring for the starting point of the description is usually serious, if not fatal; but 43 ft. instead of 40 ft., was excused in 28. Van Wyck v. Riehman, 33 Misc. 404. 29. Gale v. Archer, 42 Barb. 320. 30. Wadick v. Mace, 191 N. Y. 1. See also Devise, 5 257. 31. Schmidt v. Livingston, 3 Edw. 213. 32. Johnson v. Williams, 22 Supp. 247. 33. Gallagher v. Quinlan, 10 A. D. 402. Description. 401 Sclilesiiiger v. "Weber, 195 N. Y. 599. And in Wessel v. Cramer, 56 A. D. 30, the mistake of 177 ft., 11 inches, for 175 ft., "was also excused where all the deeds in the chain for sixty-five years referred to the same lot num- ber on Harlem Commons map. A clerical error in reciting the points of the com- pass is a common experience among conveyancers. It is well established that when such error may be cor- rected simply by omitting the faulty word, while at the same time the internal evidence of the deed, the lan- guage, courses and distances show the grantor's true intent, it does not impair the title. A description began on the westerly side of Second Avenue, 50 ft., 10 in., from the southeasterly corner of Second Avenue and 111th St., and ran westerly, south- erly, easterly to westerly side of Second Avenue, and northerly to beginning; and also covered a rear lot on the southerly side of 111th St. It was held that the southwesterly corner, recited in other deeds in the chain, was indisputably intended.^* As a starting point, the southerly side of a street which runs north and south may be obviously intended for the westerly side';^^ or the northeasterly side of a street which runs northeast and southwest for the northwesterly side;^" or the northeast corner for the southwest corner.^'' In describing No. 38 P St., the conveyancer evidently took his courses from an arrow pointing west. It was held that the points of the compass might be dis- regarded.*^ 34. Brookman v. Kurzman, 94 N. Y. 272, rvsg. 48 Super. 178. 35. Abbott V. eurran,,98 N. Y. 665. 36. Schoenewald v. Rosenstein, 5 Supp. 766. 37. Cornell v. Cornell, 14 S. R. 612, affd. 109 N. Y. 644, without opinion. 38. Lovejoy v. Tietjen, 47 Hun, 321. 402 Deeds. A description began on the south side of 176tli St.^ and ran (1) thence southwesterly deflecting to the right 130°, 108 ft.; (2) thence southwesterly, deflecting to the left 93°, 16 ft.; (3) thence northeasterly parallel with the first course and part way through the center of a party wall 123 ft. to easterly side of 176th St.; (4) thence westerly along same 22 ft. to the beginning. It was held that the intent plainly was to have the second line run southeasterly and the purchaser was compelled to complete.*^ In the description of an irregular plot at the norther- ly corner of F and W Sts., "east" and "west" were transposed throughout. The court remarked that a line running east from the beginning would never reach F St., which being a fixed boundary prevails over the word used in the description; it plainly ap- peared that west was intended.*" An error describing the lot as east (instead of tcest) of Third Avenue is cured by a reference to the premises as Lot No. 13 on a filed map where it is correctly shown.*^ A description beginning on the southerly side of G St., running thence northerly etc., is plainly wrong as it would throw almost the entire lot into the bed of the street. Not being misleading, it is sufficient for a Us pendens which contains also the correct reference to the mortgage under f orclosure and the correct land map reference showing a block wholly on the northerly side of G- St.*^ A notice of sale in bankruptcy men- tioning the wrong street, but also containing a correct map and lot number, is sufficient to sustain the title.*' 39. Downes v. Wenninger, 150 A. D. 914. 40. Ruhe V. Law, 8 Hun, 251. 41. Wagner v. Hodge, 34 Hun, 524, afifd. 98 N. Y. 654, without opinion. 42. Freedman v. Safran, 131 A. D. 675. 43. Farmers' Loan & Trust Co. v. Eno, 21 Abb. N. C. 219. Description. 403 Heller v. Colieii, 154 N. Y. 299, rvsg. 9 A. D. 465, should warn the practitioner not to lean too heavily on this rule. The premises consisted in part of a lot 25 ft. X 100 ft. on the southerly side of Gr Street, 75 ft. west of C Street, and the erroneous description was as fol- lows: — Beginning 75 ft. from the northwest comer of St. on Q St., thence south 100 ft., more or less, to I B's ground by a straight line; thence west 25 ft., more or less, to T Ws ground; thence north 100 ft. to G St., more or less; thence down G St. to the beginning 25 ft., more or less. This description the court held insuffici- ent to identify the premises with certainty. It is diffi- cult to formulate from the decision any practical rule of construction — except that the courts sometimes take a technical view and every marketability case should be fully and carefully tried with that contingency in mind.** § 578. Monuments. — A party wall is a monument; and where a description begins so many feet from the 44. The plaintiff seems to have introduced but slight evidence in reference to T Ws title on the west, and the opinion implies an equal lack of attention to I B's on the south. But as part of plaintiff's title (an additional 25 ft. x 25 ft.) was satisfactorily established through I B, the implication is rather misleading. The court also ignores the fact that the first line runs to I B's ground, so that (as concededly it cut the southerly side of G street with the right direction), the starting point and the length were imma- terial. The additional facts (1) that the literal reading would throw most of the lot into the bed of the street, and (2) that the third line of a parellelogram ran 100 ft. to G Street (not to the northerly side thereof), were considered suflScient in Freedman v. Safran, supra, under exactly similar circumstances, to demonstrate a mistake in the description. The facts therefore appear on analy- sis to come fully within the rule in Brookman v. Kurzman, supra, cited with approval in the opinion in Heller v. Cohen, that the de- scription is sufi&cient in itself to indicate plainly the property in- tended, and also to disclose an error in description which may be disregarded without disturbing the identification of the property. 404 Deeds. corner at tlie centre of a party wall, the exact centre marks the beginning, prevailing over the gi,ven meas- iirement.*^ A fence is also a monument;*® as is a high^ "way.*^ A party wall may be referred to in a description without being made a monument ; *^ and a fence not re- ferred to in the description and not on the line is of no consequence.** A lot line of adjoining premises is also a monument, prevailing over metes, bounds and area.^" Where the owner divided his plot into two lots, describing the first as beginning 325 ft., 10 in., west of T Avenue at westerly side of P's land, thence 24 ft., 7 in., west, etc., it being intended to convey half the land west of P's; and the second as beginning 350 ft., 5 in., west of T Avenue, thence 24 ft., 7 in., west, etc.; and the entire plot in fact had a frontage of 50 ft., running from a point 325 ft. west of T Avenue, the first lot took the whole 10 in. surplusage; — it began at P's line, while the second lot began at the stated distance from T Ave- nue.^^ Several recent cases have established the distinction that in order to serve as a monument the adjoining boundary must be one that the line under description (extended if necessary) could reach. It seems quite clear that this ruling begs the question: for if the boun- dary were a monument, it would prevail over the course ascribed to the line, and bring the line to itself 45. Muhlker v. Euppert, 124 N. Y. 627, affg. 55 Super. 359. 46. Lingke v. Sammis, 189 N. Y. 567. 47. Same; Rulie v. Law, 8 Hun, 251; Lovejoy v. Tietjen, 47 Hun, 321; German- American Co. v. Meyers, 32 A. D. 41. 48. Smyth v. McCool, 22 Hun, 595; Arion Realty Co. v. Schmidt, 119 A. D. 872. 49. Kelly v. Brower, 42 S. R. 758, affg. 7 Supp. 752. 50. Pope V. Thrall, 33 Misc. 44. 61. Berger v. Eenz, 127 A. D. 923. Description. '405 at the expense of mistakes in both direction and length. In Fuhr v. Cronin, 82 A. D. 210, the descrip- tion was as follows: — Beginning on the westerly side of F Avenue * * * thence northerly along F Avenne 25 ft. ; thence westerly parallel with Gr Avenue 108 ft.,. 9 in., to Lot 80 on said map; thence southerly along Lot 80, 25 ft.; thence easterly parallel with Gr Avenue 108 ft., 9 in., to the beginning. In fact the lot was laid out at right angles to F Avenue, and the second line so drawn would have reached the corner of Lot 80; but drawn parallel to G Avenue, it slanted northerly and even if extended would never touch Lot 80. It was held that the title was not marketable.^^ Probably if the call of the second line had been for the corner of Lot 80, it would have been allowed to prevail, as the two ends of the line would have been fixed by definite points, and the direction surely must yield. The cases therefore appear to demand a nice and novel distinc- tion between a point and a line as monuments. § 579. Highways. — What rights and title, if any, are conveyed to abutters on a highway, is a question of great practical importance, arising as it does not only in titles claiming the bed of an abandoned road, but also in those where a mapped street is never opened. The cases are widely divergent in point of view — so much so that no attempt is made to reconcile them.^^ The two extremes of judicial interpretation are il- lustrated by the four following cases (two on each side) : — (1) Defendant's title to premises in the bed of the old Eastern Post Road is in question. It is derived from B who admittedly owned the fee in 1826, and con- veyed to G a parcel adjoining defendant's on the 52. Cited with approval, Arion Realty Co. v. Schmidt, 119 A. D. 872. 53. See also Highways, ^ 403-409. 4:06 Deeds. north, by a description carrying to the centre of the road. In 1832 B conveyed defendant's parcel by a description beginning at a corner of other premises, thence 1009 ft. to a stone marked K in the easterly side of said road; thence along easterly side of said road, etc., excepting premises sold to G. Either the area or some measurement (it is not clear which) would require the boundary to be in the centre of the road. The court held defendant's title marketable, as the intent of the parties was to convey to the centre of the road. Placing the stone at the side is merely the most practicable method of marking the line, and the words "to the side" and "along the side" define in common parlance that portion of the road between the exterior and the centre. The exception of G 's parcel is significant, as defendant's line was probably intended to run in continuation of G's.^* (2) In the same spirit, plaintiff's title to half the bed of P St. was sustained by the court of appeals. It came through a deed con- veying a plot beginning at corner of G Road and H St. ; thence southeasterly along northeast side of H St. about 535 ft. to P St.; thence northeasterly along northwest side P St. about 246 ft. to F Alley; thence northwesterly along southwest side F Alley 513 ft. to G Eoad; thence westerly along southeast side G Eoad about 200 ft. to the beginning; being known on said map by Lot Nos. 10-42 on H Street, Nos. 19-27 on P St. and Nos. 37-51 on G Eoad. All others conveyances made by the same grantors carried to the centre of the various' streets, and no adverse claim had ever been made to the land in question. The appellate division found an ambiguity arising from the lot numbers and the natural habit of beginning a description in the centre of the street, conflicting with the word "side" used with each line in turn, and resolved it in plain- 54. Putzel V. Van Brunt, 40 Super. 501. Description. 407 tiff's favor by reference to the other conveyances and the absence of positive evidence of intent to reserve the street.^^ (3) Quite the opposite reasoning from almost the same facts led to a different result in Lee v. Lee, 27 Hun, 1. The vendor's title to premises in the bed of B Rd. comes through a deed made in 1837, when the neighborhood was rural. A 4-acre plot was then con- veyed as Lot No. 3 on annexed map; beginning on east side B Ed., at southwest corner Lot No. 2; thence along south boundary of same, south 57° east, 9 chains, 12 links, to L's land; thence * * * to northeast corner Lot No. 4; thence along same north 57° west, 8 chains, 21 links, to B Road aforesaid; thence along said road 5 chains to beginning. According to the map the measurements do not extend to the centre of the road. The court, relieving the purchaser, said that all lines must conform to the starting point, which is here the easterly side of the road; that makes the side a fixed monument, controlling the other lines — a con- clusion strengthened by the fact that the measure- ments carry only to the side. (4) Similarly in a re- cent case title came through a mortgage made in 1843 describing the premises as Lots Nos. 92-111 together bounded as follows: — Beginning at southeast corner M and G Sts.; thence southerly along G Street 500 ft.; thence easterly 97 ft., 9 in., to land of E; thence north along same 500 ft. to M St.; thence westerly along M St. 104 ft. to beginning, dimensions more or less. Said streets were never opened. The appellate division, finding no ambiguity, decided that the starting point at a corner excluded land in the bed of the street and controlled the whole description.^" 55. Potter v. Boyce, 73 A. D. 383, rvsg. 36 Misc. 467, affd. 176 N. Y. 551, without opinion. 56. Tietjen v. Palmer, 121 A. D. 233. 408 Deeds. A, owning a large tract, conveyed 10 a. to C by de- scription running to the side of P Lane 20 ft. wide and thence along same south 58° east, 10 chains, 60 links, to B Road, with the privilege of using another lane on the north; the distances and area not including any part of P Lane. A then conveyed to V land on the other side of P Lane by reference to a map excluding the lane. A retained title to premises west of C 's plot, occupied a house standing there and used the lane. It was held that the circumstances and descriptions of A's deeds showed that he did not intend to convey the bed of the lane.^^ C, owning the bed of G Rd. and adjoining premises, conveyed a parcel to S in 1860, as follows: — 8 lots on map No. 580, beginning at west side of G Road and north side 96th Street; thence west * * * thence east along southerly side 97th Street * * * to west side of G Road; thence southerly along west side of Gr Eoad, 203 ft. 6 in. to beginning; together with right, title and interest of party of the first part in 96th and 97th Streets adjoining to centre. This description was held to exclude the bed of G Road.^* A deed bounding northerly by P Lane unquestion- ably conveyed to the centre; and when the premises were afterwards partitioned and the referee's report that he had sold all the property was confirmed, the referee's deed also conveyed to the centre, though de- scribing simply by lot number without mention of the lane.^* The most carefully considered cases among those above cited seem to justify the rule of Pell v. Pell, 65 A. D. 388, affd. 169 N. Y. 607, without opinion, that 57. Mott V. Mott, 68 N. Y. 247, modifying 8 Hun, 474. 58. Augustine v. Britt, 15 Hun, 395, affd. 80 N. Y. 647, without opinion. 59. Wise V. Curry, 35 Mise. 634. Desoeiption. 409 ■where the owner subdivides into lots by a map, the in- ference is that the abutting lots extend to the centre of the road. Although this rule, has twice been ac- cepted by the court of appeals, it still seems occasion- ally to be overlooked. For instance, N owned the lot at the corner of Second Avenue and S Place, a 60 ft. street. In 1835 his heirs partitioned and sold said premises as Lot No. 134 on a map showing S Place as a 76 ft. street (thus reducing the width of the lot by 8 ft). The 8 ft. strip was not in fact used as a street, but as a courtyard. The title to the lot was questioned on the ground that N's heirs never conveyed the 8 ft. strip, and special term sustained the objection.'"' A description of lots as Nos. 1 to 5 on a map by D, 157 ft. front on the westerly side of E Avenue by 115 ft. deep, was used in a contract drawn after N Avenue, also shown on said map as bounding said lots on the north, had been opened and publicly used. In fact N Avenue was laid out 3^ ft. south of the map loca- tion; and vendee objected that he would not get good title to the strip overlapped by the street. The court held that the parties did not intend to include such strip in the conveyance and that vendee would get good title to all he intended to buy.®^ § 580. Shore. — Defendant sold premises running to the shore of Long Island Sound, at |3125 per acre ; and the question was whether his title to three acres be- tween high and low water mark was "good and suffi- cient, ' ' so that plaintiff must pay for same. The title came through a patent to E in 1668 conveying all "woods, beaches, marshes, pastures, creeks, waters, lakes, fishing, hunting and fowling," and another grant in 1701 by the sovereign to B's grantee, by the 60. Weiss V. Schweitzer, 47 Misc. 297. 61. Weinheimer v. Ross, 214 N. Y. 630. 410 Deeds. same description, including also bays and beaches. It was held that the grant extended to low water mark.®^ A description bounding premises on a tidal river does not convey below high water mark.®* M owned to high water mark on the Harlem Eiver. His executor in 1784 conveyed to M's daughter C by description beginning at south side of the road to H; thence south 3° east, 6 chains, 37 links; thence south 10° east, 41 chains, 40 links, to the marsh; thence south 79° west, 2 chains, 20 links, along said marsh, etc. In 1795 C conveyed by a new description bounding south- erly by high water mark or the marsh or meadow be- longing to the city, and referring to the southerly and easterly lines as running to high water mark or said marsh or meadow, thence along same. It was held to be reasonably free from doubt that M's executor con- veyed to C to high water mark as then known. ^* § 581. Discrepancy. — An ambiguity or conflict in the description may be resolved by practical location.®^ When a surplusage or deiiciency occurs in the block, de- scriptions affected may be explained.^® These subjects are discussed more fully in other sections.'''' § 582. Metes and Bovnds. — Metes and bounds prevail over other descriptive features, except that they do not limit a direct statement of intent to convey the premises 62. Oakes v. De Laneey, 71 Hun, 49, affd. 143 N. Y. 673, with- out opinion. 63. McFarlane v. Kerr, 10 Bosw. 249. 64. Brenstein v. North American Realty Co., 119 Supp. 1. 65. Pangburn v. Miles, 10 Abb. N. C. 42, modified and afifd. 10 Abb.' N. C. 51. 66. Meyer v. Boyd, 51 Hun, 291; Kelly v. Brower, 42 S. R. 758; Ford V. Schlosser, 13 Misc. 205. 67. See Practical Location, § 331; Deficiency, ^ 591-595; Sur- plusage, 5 590. Description. 411 as a whole. A considerable variance in area, for in- stance, is not material where the premises are described as Lot No. 78 in the township of L, containing 600 a. The court considered this as full and definite a descrip- tion as if metes and bounds had been used, and upheld a conveyance proved on survey to contain only 421% a."^ So where a farm bounded east by land of K, south by land of L, west by land of M, containing about 80 a. and having a frontage of at least 1,900 ft. on H Turn- pike, being the same premises now occupied by the party of the first part, proved to contain 95 a., it was held to conform to the contract.^^ A vague description by metes and bounds throws upon vendee the burden of ascertaining the area if it .is material; if he does not himself survey it, he cannot object that it contains only 24 acres instead of 31.''" A contract for a farm situated in the town of H on which S G now lives was held to call for the premises ac- tually occupied by S Gr. As about half his fences were outside the lines and he cultivated 5 a. to which he had no title, a deed of 109 a. by metes and bounds did not fulfill the contract.^^ The omission of a gore in a metes-and-bounds descrip- tion is cured by adding the words :^ — It is intended to convey all the triangle of the party of the first part.'^^ 68. Mann v. Pearson, 2 Johns. 37. 69. Sheindelman v. Colyer, 122 A. D. 379. , 70. Dennerlein v. Dennerlein, 111 N. Y. 518, a%. 46 Hun, '561, and 14 S. E. 932. The sale was on the premises. The description was as follows : Beginning on B S Lane at the southwesterly cor- ner adjoining land of A, running thence northerly as the fence now stands 21 chains, 15 links; thence easterly to a rock; thence south- easterly to land of B ; tjience southerly as the fence stands to land of C; thence southwesterly as the fence stands to the lane; thence along same to the beginning, containing 31 acres more or less. 71. Jones v. Gardner, 10 Johns. 266. 72. Weinheimer v. Ross, 205 N. Y. 518, rvsg. 140 A. D. 919; Same v. Same, 214 N. Y. 630. 412 Deeds. A reference to a prior deed containing a correct de- scription cures an error of three feet in width in a later deed of ' ' the same premises. ' ' ^^ An error in the lot number is not material where metes and bounds are correctly given.''* Metes and bounds prevail over a street number; where they are wrongly given, the description is not saved by the correct reference to the number.'^ This rule was adhered to even where the misdescription re- sulted in the omission of a gore to which, as the court remarked on the trial, it was inconceivable that the former owner had intended to retain title.'"' A deed given to correct a former deed and still contain- ing a mismeasurement, may by reference to street number, party walls and intent to correct, so clearly show grantor's intention to convey a lot with a build- ing on it as to be given the desired effect.''^ Metes and bounds prevail over incidental reference to party walls — as in a contract for a lot 25 ft x 100 ft. beginning 235 ft. northeasterly from railroad, north- erly and southerly boundary lines running through a party wall, being the same premises shown on a map by.M.^8 Such a description may give the purchaser the right to reject title where the side lines are 5 in. off the centre of the party wall through which they are supposed to run.'^^ The ground of this decision is not clear. Ap- 73. Bernstein v. Nealis, 144 N. Y. 347. 74. Frost V. Hirschberg, 17 W. D. 224. 75. Fitzpatrick v. Sweeney, 56 Hun, 159, affd. 121 N. Y. 707, on opinion below. 76. Schmobl v. Chasis, 83 A. D. 643. 77. Me Adam v. Farrell, 29 Misc. 230. On p. 231, 1. 3, "5 inches " is a misprint f or " 8 inches." 78. Meadows v. Michel, 135 A. D. 213. 79. Smyth v. McCool, 22 Hun, 595. Description. 413 parently purchaser contracted by a metes-and-bouijds description with incidental reference to the centre of party walls. The variation of 5 in. left the bound- ary lines still within the walls, both of which were a foot thick. This would seem to be all the purchaser was entitled to demand, not having himself made the centre a monument in the contract. A deed of premises 480 ft. west of C Street, with beam rights as in deed from F to G, under which M and his heirs have been in possession, is not sufficient, in the absence of definite proof of the location of the wall sub- ject to said beam rights, to convey marketable title to premises 408 ft. west of C Street.*" A clear, definite and plausible description by metes and bounds must be followed to its logical conclusion. The call for the rear line to run parallel to the front can- not be ignored because such a line cuts 2 ft. 5 in. off one side line.*^ Where after a street had been widened 40 ft., several conveyances were made by the old descrip- tion, beginning 557 ft., 10^2 in., northwest of 4th Ave- nue, the court held that there was no ambiguity and the deeds did not convey marketable title to premises then only 517 ft, 10% in., northwest of 4th Avenue.*^ Circumstances may show grantor's intent so plainly as to break down the technical rules of construction. J owned two adjoining lots on which stood houses separ- ated by a party wall, the centre line of which is 225 ft. 5 in. east of 6th Avenue. He sold the easterly lot to by description beginning on north side of 27th Street 225 ft. 6 in. east of 6th Avenue; thence northerly par- allel with 6th Avenue through the centre of a party wall 98 ft. 9 in., etc. Later he sold the westerly lot to 80. Kelly v. Kelly, 72 A. D. 487. 81. Builders' Mortgage Co. v. Berkowitz, 134 A. D. 136, approved 201 N. Y. 596, without opinion. 82. Egellioff V. Simpson, 50 A. D. 595. 414 Deeds. Q by description beginning on north side of 27tli Street 200 ft. east of 6tb Avenue; thence easterly along said street 25 ft. 6 in. to centre of party wall, standing one half on lot hereby conveyed and one half on lot ad- joining same on east, etc. The vendee of said two lots now objects that J still has title to 1 in. in the party wall between the lots. But the court, instead of con- struing the first deed strictly as beginning 1 in. off the centre and the second as running to the centre only, held that J's intent plainly was to convey "both houses just as they stood with the party wall between as a boundary for each," and required the vendee to com- plete.^* § 583. Habendum. — Not much weight is given to the habendum clause in determining the problems relating to the grantee.^* It was referred to in Pfeiffer v. Eheinfrank, 2 A. D. 574, as strengthening the conclu- sion already reached; but was disregarded in Kanen- bley V. Volkenberg, 70 A. D. 97, where it contradicted such conclusion. An habendum to successors and assigns for the uses and purposes of a school district was held to impose no restriction on the land conveyed.*^ § 584. Seal.— Under 1 E. S. 738, § 137, a seal was expressly required in order to pass title f^ but none has been necessary since the repeal of that statute in 1896." A deed without a seal passed equitable title.®* 83. Darling v. Alexander, 130 A. D. 85. 84. See Parties, 5 574. 85; Board of Education v. Eeilly, 71 A. D. 468. 86. Todd V. Union Dime Savings Inst., 118 N. Y. 337. 87. Leask v. Horton, 39 Misc. 144; Laws of 1896, c. 547, § 208. 88. Todd V. Eighmie, 4 A. D. 9. !A.CICNOWLEDGMENT AND PROOF. 415 When a seal is recited but not shown by the record, the burden is on the objecting party to show that there was no seal.^* Not much evidence can ordinarily be produced, nor is much ordinarily required. In a series of cases against the same defendant, an objection raised by different purchasers was that a deed record- ed in 1870 lacked a seal. Plaintiff showed that the record contained a short dash after the grantor's sig- nature — the customary mark in the office to denote no seal at the time of recording. Defendant proved that in 1874 the deed bore a seal and was re-recorded with note of same. The deed itself, in both body and attes- tation clause, recited a seal. The trial courts found for plaintiff, but that finding was disapproved by the court of appeals.*" § 585. Acknowledgment and Proof. — Effect of. — Tender of an unacknowledged deed, executed by the owner and his wife in 1851 did not fulfill the require- ments of a contract for a good and sufficient warranty deed. The wife's acknowledgment was necessary to cut off inchoate dower and convey fee simple.*^ It has also been held that the requirement of a separate ac- knowledgment by a married woman, in order to cut Off inchoate dower, was abolished in 1849.*^ The contents of the certificate of acknowledgment ^lay be considered as some evidence of the necessary facts recited;®* but not of unnecessary statements.®* 89. Dana v. Jones, 91 A. D. 496. 90. Todd V. Union Dime Savings Inst., 118 N. Y. 337, rvsg. 20 Abb. N. C. 270; Kursheedt v. Same, 118 N. Y. 358; Todd v. Same, 128 N. Y. 636, affg. judgment for defendant, after second trial. 91. Stevens v. Hunt, 15 Barb. 17; Jones v. Gardner, 10 Johns.. 266. 92. Allen v. Reynolds, 36 Super. 297; Laws of 1849, c. 375. 93. Veit V. Schwob, 127 A. D. 171. 94. Cromwell v. Phipps, 6 Dem. 60. 416 Deeds. A deed without a proper acknowledgment conveys title and is good for all purposes except as against bona fide purchasers for value from the grantor.®^ § 586. Form. — It seems to have been conceded in Smith V. Coffin, 34 Hun, 635, that an acknowledgment — "To me personally known as the individual," etc., was defective; but that precise phraseology was sus- tained in Penfield v. James, 4 Hun, 69, and 4 Hun, 668. An acknowledgment in 1870 omitted the words "to me known." After twenty-two years' undisturbed possession, the probability of trouble arising from the conceded defect was held to be so remote as not to make the title unmarketable.®* That decision has been succeeded by a series of cases growing ever stricter until several have pounced upon formal defects in ancient documents and pronounced them fatal. A technically correct acknowledgment has therefore become a matter of considerable impor- tance. The failure of the certificate to recite that the per- son acknowledging is the one "described in" the in- strument is alone a sufficient objection.®^ Still more, the omission of the additional words — "and who exe- * cuted the within." ^^ Even the following was held de- 95. Fryer v. Rockefeller, 63 N. Y. 268. 96. Hutton V. Webber, 60 Super. 247, affd. 137 N. Y. 615, on opinion below. 97. Gross v. Rowley, 147 A. D. 529. This suggests tbe inquiry — ■what description of the grantor is usually given in a deed? why should the notary be expected to examine and construe the instru- ment? and of what value is the notary's opinion about the descrip- tion — ^f or is it not mere opinion ? 98. Paolillo V. Faber, 56 A. D. 241; Carolan v. Yoran, 104 A. D. 488, aff d. 186 N. Y. 575, without opinion ; Moran v. Stader, 52 Misc. 385. It was doubtless the fault of the vendor's attorneys in the last two cases that these strict rulings were applied to ancient documents. The beneficial rule of ancient documents seem less familiar to the bar than it ought to be. Execution. 417 fective: — "Personally appeared before me the witMn named J M C to me known and acknowledged the above letter of attorney to be his act and deed. ' ' ®® An acknowledgment without a venue is insuffi- cient."" § 587. Suhscribing Witness. — It is essential to state the residence of the subscribing witness. Failure to do so cannot be excused by the fact that he is a sub- stantial citizen well known throughout the county.^"^ Where the residence though wrongly stated is still as- certainable, as the "city of Bergen" when the former city of that name had been consolidated with Jersey City, the title will be sustained."^ The proof need not recite that the witness actually saw the grantor sign.^"^ § 588. Execution. — Where the law of another state requires two witnesses to a deed, the vendee of prem- ises therein will not be compelled to accept a deed wit- , nessed by one person only.^"* An infant's deed should be signed " A B, by J M, his guardian ad litem." A deed signed by the infant in- dividually and the guai-dian ad litem individually is at least so irregular that the vendee will not be required to accept it."^ An executor's deed may be signed, "M, executor of S, deceased" (without the word "as")."' 1 99. Freedman v. Oppenheim, 80 A. D. 487. 100. Leavitt v. Thornton, 123 A. D. 683. 101. Irving v. Campbell, 121 N. T. 353, rvsg. 56 Super. 224. ' 102. Heaton v. Griswold, 70 Misc. 326. 103. Penfield v. James, 4 Hun, 69 ; Same v. Same, 4 Hun, 668. 104. Everson v. Kirtland, 4 Paige, 628. 105. Hyatt v. Seeley, 11 N. Y. 52. 106. Doody v. HoUwedel, 22 A. D. 456. 418 Deeds, A deed executed by attorney must purport to be the grant of the principal. The "exact form of signature is not prescribed.^*"^ Where husband and wife have executed a deed, the husband may not afterwards independently alter it.^"* Where a fiduciary has also an individual interest, an instrument not clearly purporting to be executed in the fiduciary capacity will be construed to convey the individual interest only."" It was held an effective modification of a mortgage when the president of the mortgagee corporation struck out a clause and wrote in the margin, "This Clause out— H E Co., N H, Pres." i" Where the legislature authorizes a conveyance, it may direct the deed to be executed by anybody.^^^ § 589. Delivery. — A deed fifty years old, found and recorded by the executor of the record owner, was objected to by the purchaser as breaking the chain of title. It had been executed by four persons as gran- tors, but not by the wives of two of them, though re- cited as parties of the first part. It was held that no presumption of delivery attached to such an instru- ment. ^^^ Title is not affected by a deed which the intended grantee refuses ^o accept.^^* 107. Robbins v. Austin, 42 Hun, 469, sustaining as the grant of E M a deed reciting that the grantor E M by her attorney hath hereunto set her hand and seal, and signed " A B, atty, by E M. " 108. Stone v. Lord, 80 N. Y. 60. 109. Weinstein v. Weber, 178 N. Y. 94; Merolla v. Lane, 122 A. D. 535. 110. Webster Realty Co. v. Gerarty, 202 N. Y. 530. 111. Matter of Bull, 45 Barb. 334. 112. Cussack v. Tweedy, 126 N. Y. 81. 113. Trustees ,of Jones Fund v. Roth, 18 W. D. 459. Deficiency. 419 3. Surplusage. § 590. It often happens that land overruns the gen- eral description of a deed, especially with country prop- erty. Such variance is no objection to title.^ Where there is a surplus in the block the lot-owners may by mutual consent divide it among themselves. In such cases the location of the boundary lines must vary from a description drawn before the surplus was discovered, but such variance is no objection to title.- An apparent encroachment may be explained in the same way.* It is also competent for one owner to take possession of the entire surplusage. If the adjoining owners, who might have claimed shares therein, acqui- esce, satisfactory title vests in the party in possession. by practical location of sufficient duration.* The existence of surplusage forms satisfactory basis for title to so much thereof as a lot owner occupies by practical location or adverse possession.^ 4. Deficiency. § 591. Area. — That the judicial sale of a homestead containing 20 acres is not satisfied by premises con- taining less than 13 acres was decided in an early case.^ Such gross discrepancy would seem to make the defect in title obvious ; but the court very properly points out that the real test is value — a ruling applied 1. Cheesman v. Thome, 1 Edw. 629. 2. Meyer v. Boyd, 51 Hun, 291; Kelly v. Brewer, 42 S. R. 758, a%. 7 Supp. 752. 3. Keitel v. Zimmermann, 19 Misc. 581. 4. Wentworth v. Braun, 78 A. D. 634, a%. 38 Misc. 702, affd. 175 N. Y. 515, without opinion. 5. Beardmore v. Barry, 118 A. D. 334, affd. 193 N. Y. 639, with- out opinion. Where the surplusage is divided evenly there seems no reason for waiting twenty years to establish title. 1. Veeder v. Fonda, 3 Paige, 94. 420 Deficiency. to the more numerous cases where the deficiency is measured by length or width. That rule was applied in Garibaldi Eealty & Construction Co. v. Santangelo, 164 A. D. 513, to a deficiency of two per cent, in area; and it was held infinitesimal because amounting to only |71 on a $14,250 purchase. § 592. Width.— As the standard city lot, 25 feet wide, is already too narrow to hold a proper house, it is not surprising to find that a few inches deficiency in width is regarded as a material defect. Just how small the slice must be to become immaterial is not well de- termined. A dictum of the court of appeals, second di- vision, states that two inches (6 inches in 75 feet) does not cause prima facie injury.^ A judge has held at special term that approximately four and two thirds inches (.39 feet) is immaterial.* On the other hand the following deficiencies were held substantial: — Twelve inches in 25 feet;* Twelve inches in 27 feet;^ Nine inches in 32 feet;* Four and one half inches in 27^/^ feet;'' Five inches in 24 feet, 8I/2 inches.^ In a recent case the appellate division has applied the rule with great stringency to a contract calling for 2. Kelly v. Brower, 42 S. R. 758. 3. LigMon v. Syracuse, 48 Misc. 134, affd. 112 A. D. 134, rvsd. 188 N. Y. 499, on other grounds. There was an excess of 2 in. in length in a corner lot to offset the deficiency in width, but it does not appear that proof of value was taken. 4. Sabriski v. Veloski, 25 Abb. N. C. 185. 5. Nicklas v. Keller, 9 A. D. 216. 6. Raben v. Risnikoff, 95 A. D. 68. There was also a shortage. 7. Floeting v. Horowitz, 120 A. D. 492. 8. Siebel v. Cohen, 54 Super. 436. Length. 421 No. 897-899 M Avenue, dimensions being 31 feet 9 in. X 75 feet, subject to the state of facts sbown on a sur- vey by F. Said survey showed a building encroacbing on tbe easterly side, beginning 19 feet from tbe rear and running to a width of five inches on the rear line. On vendor 's failing to show title to this gore the court dismissed his complaint.® It would seem however that the defect was absolutely immaterial. The fee of the gore was of no substantial value and its possession was not bargained for, because by the terms of the con- tract vendee was required to take subject to the build- ing projecting beyond the specified lines. § 593. Length. — ^It is well recognized in city real estate that most of the value of the standard lot lies in the front portion. It has accordingly been held that the Hoffman rule, reducing this fact to a scale of fig- ures, may be applied in marketability cases to deter- mine the value of the deficiency.^" In an action at law It is a question of fact for the jury whether the short- age (in this case 2 ft. in 75 ft.) is material, taking into account the character of the premises.^^ The following shortages have been held material: — 6 feet in 42 feet;!^ 23.12 feet in 200 feet;i' 5 feet in 100 feet;" 2% feet in 89% feet;^^ 9. Kaplan v. Bergmann, 122 A. D. 876. The cases cited all in- volve frontal encroacliinents. 10. Uebelacker v. Uebelacker, 112 Supp. 527. 11. Stokes v. Johnson, 57 N. Y. 673. 12. Laight v. Pell, 1 Edw. 579, in a house. 13. Albro V. Gowland, 98 A. D. 474. 14. Raben v. Risnikoff, 95 A. D. 68, also narrow. 15. Wacht V. Cohen, N. Y. L. J., Jan. 4, 1905, with uncontra- dicted evidence of a considerable loss in value. 422 DEFICIENCt^. The following have been held immaterial: — One inch in 82 5-6 feet;i« Seven inches in 102 1-3 feet." § 594. Qualifying Words. — More or Less. — How much variation may there be when the contract gives the dimensions ' ' more or less ' ' ? Somewhat more than if those words had not been used, for they must be given effect ;i^ yet not a substantial amount." Nor do the words justify a substantial departure from a straight side line.^" Where title approximates the description it comes within the term "more or less," as a possible defici- ency of one half foot (.51 ft.) on a frontage of 171% feet;^^ 1.94 ft. in 100 ft.;^^ or even nine inches on a frontage of 36 1-6 feet.^^ In Urbach v. Pye, 124 A. D. 587, rvsg. 55 Misc. 465, the court made a rather vigorous application of the rule. The contract called for premises No. 346-348- 350 S Avenue, with the buildings thereon, the plots be- ing 25 ft. 3 in. X 81 ft!; 25 ft. 2 in. x 101 ft.; and 25 ft. 2 in. X 97 ft. ; all parcels being the same size both front and rear, "more or less." Vendor tendered title to premises three fourths of an inch wider and bounded in the rear by a slanting line, so that all the length di- mensions varied from the contract, running from 76 ft. 16. Greenfield v. Mills, 123 A. D. 43. 17. Uebelacker v. Uebelaeker, 112 Supp. 527. 18. Urbach v. Pye, 124 A. D. 587. 19. Raben v. Risnikoff, 95 A. D. 68; but see Felix v. Devlin, 90 A. D. 103. 20. King V. Knapp, 59 N. Y. 462. 21. Beardmore v. Barry, 118 A. D. 334, affd. 193 N. Y. 639, with- out opinion. Contract for 171.25 ft. ; title to 170 ft., plus share of surplusage, .74 ft.; deficiency, .51 ft. 22. Garibaldi Realty & Construction Co. v. Santangelo, 164 A. D. 513. 23. Hecker v. Sexton, 43 Hun, 593. Possession. 423 5 in. to 101 ft. 214 inclies (but averaging about 20 in. short). In tbe absence of proof of value, and -with evi- dence that vendee had not been much influenced by the discrepancy on learning of it, the court suggested that the gain in width might offset the loss in length, and awarded judgment to the vendor. In Moser v. Cochrane, 107 N. Y. 35, the opinion is to the effect that where the boundaries are plainly monu- mented in both contract and deed, so that no mistake could arise as to location or dimension, a deficiency of two inches under a contract for 28 1-6 feet is covered by the "more or less" provision. The case should, however, be cited with caution, for the deficiency was in fact ten (not two) inches, and the contract did not monument the boundaries — calling only for premises No. 66 W 10th St., being 28 ft. 10 in. "more or less" in front from a point on the westerly wall of No. 64 and 92 ft. 3 in. "more or less" in depth. Where premises were sold by lot numbers on a dia- gram and the diagram showed measurements and con- tained the words "be said dimensions and distances more or less," the loss of a gore three feet long by six inches wide in the front corner was held not to render title unmarketable even though it depreciated the price almost five per cent. (|1,000 in $21,000). The vendee was excused by the words ' ' more or less. ' '^f § 595. About; Or Nearly So. — The rule appears to be the same for the words ' ' about ' ' and ' ' or nearly so. ' ' ^^ 5. Possession. § 596. Element of Title. — Possession is an important element of title; and where there is conflict in the rec- 24. Felix v. Devlin, 90 A. D. 103. 25. Albro v. Gowland, 98 A. D. 474; Garibaldi Realty & Con- struction Co. V. Santangelo, 164 A. D. 513. 424 Possession. ord title, the possession should be clearly shown in order to make title marketable.^ Title is not marketable unless vendor can give pos- session on closing ;2 and the possession must be actual and not merely constructive.^ This rule applies as well to judicial as to private sales, except that at sher- iff's sale the court does not undertake to give posses- sion.* On judicial sale the purchaser is entitled to im- mediate possession on the closing day and may rescind his purchase if he does not receive it.^ Vendee cannot be required to take judicial proceed- ings in order to obtain possession;" but he may not in- sist upon vendor's moving out before closing. The ob- ligations are mutual.'' Where the contract clearly shows that a third party is in possession, the situation is different; and if the price is payable on tender of deed, vendee may not de- fend on the ground that he has not received posses- sion.^ So where the subject matter of sale is a re- version.® § 597. Parties to Action. — Where the premises are in possession of a defendant in the action, the purchaser at judicial sale may not object. It will be assumed that defendant will surrender possession on closing.^* 1. Reydel v. Reydel, 10 Misc. 273. It is not clear how the rule applies to the facts of this case where vendor had acquired both chains. 2. King V. Knapp, 59 N. Y. 462; Hoag v. Owen, 57 N. Y. 644. 3. Buxbaum v. Devoe, 123 A. D. 653. 4. McGown v. Wilkins, 1 Paige, 120 {dictum as to sheriff's sale) . 5. Remsen v. Reese, 72 Hun, 370. 6. Warren v. Banning, 21 Supp. 883, modified 140 N. Y. 227. 7. Teller v. Schulz, 123 A. D. 883. 8. McKechnie v. Sterling, 48 Barb. 330. 9. Clarke v. Hughes, 13 Barb. 147. 10. Union Trust Co. v. Driggs, 62 A. D. 213. 'Adverse Claim. 425 But -where the person in possession was not a party to the action, the objection is valid; and it is immaterial whether he is a tenant,^ ^ or whether he holds under a void lease or is a squatter.^^ Nor does it help plaintiff that the person in possession was only a monthly ten- ant instead of a yearly tenant as purchaser alleged in his objection.^* Purchaser is not obliged to litigate an alleged lease or to dispossess. And if petitioner wishes to enforce the sale he must tender actual possession — not merely show his right to remove the tenant and offer to do so." § 598. Under Adverse Claim.— Where the person in possession claims the right to remain, vendee will not be required to complete. Equity will not compel him to incur the expense and uncertainty of an ejectment suit or other litigation,^^ even though vendor insists that the third person 's alleged lease is void and he is a mere squatter.^® Where the person in possession claims the fee, vendor's deed becomes void and he is entitled to no relief whatever against vendee. ^'^ An accidental trespass, conceded to have been made without title and without right and in ignorance of the true lines, is ground for nominal damages only on al- leged breach of contract, and would be no defense to an action for specific performance.^^ A temporary in- terference with access to the premises, because of 11. Buxbaum v. Devoe, 123 A. D. 653; Welsh v. Schoen, 59 Hun, 356. 12. Kopp V. Kopp, 48 Hun, 532. 13. Downes v. Wenninger, 207 N. Y. 286, rvsg. 150 A. D. 914. 14. Matter of Chanler, 59 A. D. 613. 15. Bullard v. Bicknell, 26 A. D. 319; Welsh v. Schoen, 59 Hun, 356. 16. Kapp V. Kapp, 15 S. R. 967. 17. Barlow v. Scott, 24 N. Y. 40. 18. Horton v. Bauer, 129 N. Y. 148. 426 Feaud. building operations, is ground not for relief from the purchase but for compensation.^* Vendee finding some person apparently in posses- sion is entitled to a reasonable time to inquire into his rights.^" 6. Fraud. § 599. Action For. — The equity rule that on proof of fraud the parties will so far as possible be restored to their original positions renders unmarketable titles containing proof of recent fraud. Where an action is brought to rescind a purchase of real estate, the ques- tion involved cannot strictly be one of marketability; but misrepresentation as to the marketability of title may afford ground for such action. The vendee may rely upon representations that the title is good and free from encumbrances, and if he does, he is entitled to a reasonable time after accepting, the deed to dis- cover existing mortgages.^ A representation that premises will be sold subject to 5% mortgages is not proved false by the existence of 6% mortgages, for the rate of interest may be reduced before the closing date.^ Where an action or proceeding based on fraud and affecting the premises is pending, a purchaser will not be required to complete before a decision on the merits.* Where the motion is for resale on ground of fraud, and the fraudulent vendee and his grantee are made 19. Meinell v. Meinell, 110 A. D. 891. 20. Jencks v. Kearney, 17 Supp. 143. 1. Boon V. James, 21 A. D. 627. 2. Kranz v. Lewis, 115 A. D. 106. 3. Curtis V. Ballagh, 4 Edw. 635; Earl v. Campbell, 14 How. Pr. 330. Sucpicious Circumstances. 427 parties and tlie grantee is held to have taken with no- tice, the second vendee will not be relieved because of the fraudulent vendee's conveyance.* In order to clear the title after a fraudulent convey- ance, the persons in whom legal title has vested must be joined as parties.^ A vendee remaining in possession will not be al- lowed to defend an action for the purchase price on the ground of fraud.* § 600. Suspicious Circumstances. — The existence of suspicious circumstances may in itself be enough to render a title unmarketable. It was so held where a bankrupt's realty was sold for |2 and the deed was not executed until twenty-two years later.'^ It is not nec- essary to prove actual fraud.* The sale by a fiduciary to himself individually is suspicious on its face; and it is regarded by most courts as equally suspicious where the sale is made to a third party who within a few days conveys to the fiduciary.® The appellate divi- sion, first department, was not however disturbed where the executors A and B conveyed to D for a stat- ed consideration of 1157,000, D the same day conveyed to A, and the executors thereafter in their accounting, without showing that A had acquired the real estate, charged themselves with 1157,000.1" The purchase by the wife of a fiduciary has been 4. Colby V. Eowley, 4 Abb. Pr. 361. 5. Pendleton v. Fay, 2 Paige, 202. 6. Lamerson v. Marvin, 8 Barb. 9; Linsey v. Ferguson, 3 Lans. 196. 7. Palmer v. Morrison, 104 N. Y. 132, afEg. 51 Super. 530. 8. Feller v. Mitchell, 53 Misc. 486. 9. Same; Toole v. McKiernan, 48 Super. 163; Stevens v. Banta, 47 Hun, 329; Eickwort v. Powers, 17 Supp. 137. 10. Weintraub v. Siegel, 133 A. D. 677. 428 Feaud. held unexceptionable;^^ but the weight of authority holds such a transaction suspicious on its face.^^ The entire circumstances may be explained so as to show a bona fide sale to the fiduciary or his wife after unsuccessful efforts to get as high a price elsewhere.^* Facts not provable under the rules of evidence, such as the admissions of a former owner after conveyance, though they may create suspicion, do not render a title unmarketable." The fact that there may be some ex- planation of the apparent fraud is not in itself suffi- cient to sustain the title; the purchaser is not bound to assume the responsibility of showing good faith.^^ Whether a mortgage by L individually to himself as guardian of M, an infant, is valid is not open to ques- tion by the purchaser in foreclosure ; L and M are both bound by the judgment.^® § 601. Voidable. — The general rule is that the con- veyance by a fiduciary to himself, though made in good faith, for a fair price and through a dummy, is voidable.^'' By section 1679 of the Code a conveyance by guardian ad litem to himself is made "void"; and the court construing such transaction in McKean v. Hill, 166 A. D. 18, held that it could not be ratified. A subsequent purchaser is not bound to take the risk 11. Potter V. Sachs, 45 A. D. 454. 12. Wohlfarth v. Chamberlain, 14 Daly, 178; Taylor v. Klein, 47 A. D. 343 {dictum) ; and see § 603. 13. Miller v. Weinstein, 52 A. D. 608, affd. 166 N. Y. 608, with- out opinion; Wyeth v. Sorchan, 38 Misc. 173. 14. Johnston v. Garvey, 139 A. D. 659, affd. 201 N. Y. 548, on opinion below. 15. People V. Globe Mutual Life Ins. Co., 33 Hun, 393. 16. Lyon v. Lyon, 67 N. Y. 250. 17. Weil V. Eadley, 31 A. D. 25; Gardner v. Dembinsky, 52 A. D. 473, affd. 170 N. Y. 593, without opinion. Voidable. 429 that all the beneficiaries have ratified. ^^ If the vendor relies on ratification, the burden is on him to prove it.^* Where the transaction is fully explained to all in- terested parties and authorized by the court, it is not subject to be avoided. This has been held of a sale in partition to the plaintiffs who owned an undivided share individually and a share as testamentary trus- tees f and of a sale in infants' proceedings to the special guardian's wife.^^ The objection may not be raised by fiduciary himself who has purchased but refuses to complete. ^^ The defect may be cured by lapse of time. After 42 years the presumption arises that the fiduciary ac- counted properly, and the beneficiaries are barred.^^ So after 34 years.^* Twenty years after receipt of pro- ceeds of sale will bar the beneficiaries.^^ Twenty years without other circumstances is not sufficient to make title marketable, as infancy, ignorance, concealment or misrepresentation might excuse delay in bringing an action to set the transaction aside. Sixteen years has also been held insufficient.^* The exact period within which such action must be brought is stated in Wolf V. Schmidt, 15 Daly, 107, to be ten years. 18. Stevens v. Banta, 47 Hun, 329. 19. Priessenger v. Sharp, 53 Super. 315. 20. SehoUe v. Scholle, 101 N. Y. 167; Corbin v. Baker, 167 N. Y. 128, a%. 56 A. D. 35. 21. Strauss v. Bendheim, 162 N. Y. 469, rvsg. 44 A. D. 82. The. statement in Weinstoek v. Levison, 26 Abb. N. C. 244, that such a sale, when unauthorized, rendered the proceedings absolutely void, is evidently too broad. 22. Bergen v. Wyckoff, 1 Civ. Proe. 1. 23. Herbert v. Smith, 6 Lans. 493. 24. Wolf V. Schmidt, 15 Daly, 107. 25. Kahn v. Chapin, 152 N. Y. 305. 26. Prentice v. Townsend, 143 A. D; 151. 430 Feaud. § 602. Fiduciaries. — Trustees; Executors; Special Guardians; Committees. — The general rule above stated, that a fiduciary may not convey to himself, applies to all persons in a relation of confidence, as trustees,^^ executors,^^ special guardians^^ and committees.^" § 603. Wives. — It has been said obiter by the appel- late division,^^ questioning the opinion in an earlier case,^^ that the same rule applies to the wives of fiduciaries. It was so held of the wife of an assignee for benefit of creditors in Wohlf arth v. Char^berlain, 14 Daly, 178, and of the wife of a special guardian in Weinstock v. Levison, 26 Abb. N. C. 244. § 604. QuMrdian in Socage. — The father and mother of infant owners of realty are within the rule.^* § 605. Life Tenant. — The life tenants may not by joining with the trustees convey through a dummy to themselves so as to cut off the remaindermen. Such a transaction shows on its face that it is not a bona fide exercise of the trustees' power of sale.'* 27. Toole V. McKiernan, 48 Super. 163; Gardner v. Dembinsky, 52 A. D. 473 (donee of power in trust) . 28. People v. Open Board, 92 N. Y. 98; Stevens v. Banta, 47 Hun, 329; Eickwort v. Powers, 17 Supp. 137; Weil v. Radley, 31 A. D. 25, affd. 163 N. Y. 582, without opinion; Prentice v. Town- send, 143 A. D. 151; McCarty v. Downes, 161 A. D. 667. 29. People v. Globe Mutual Co., 33 Hun, 393; Buderus v. Immen, 20 W. D. 88 (dictum). 30. Taylor v. Klein, 47 A. D. 343. 31. Same. 32. Potter v. Sachs, 45 A. D. .454. 33. Weinstock v. Levison, 26 Abb. N. C. 244; Feller v. Mitchell, 53 Misc. 486. 34. McPherson v. Smith, 49 Hun, 254. Fiduciaries. 431 § 606. Auctioneer. — Where a defendant in fore- closure, interested in the premises sold, was auctioneer on the foreclosure sale, the purchaser was relieved from his bid without proof of bad faith or actual fraud. ^^ § 607. Tax Sales. — If at a tax sale the testamentary trustee purchases as trustee, he holds for the benefit of the devisees, and the tax lease is no objection to title.^" § 608. Relation not Confidential. — An executor who has no powers or duties as such in relation to the prem- ises is not debarred from taking title ;^'' nor is a ten- ant by the curtesy prohibited from purchasing on foreclosure.*® A mortgagee may buy a lien hostile to the mortgagor.*^ § 609. Mortgagee's Representative. — The mortgagee's executor stands in a very different position from the executor of the owner. What the former really holds is a debt secured by real estate. On foreclosure it is therefore to the advantage of the estate to have the executor bid, and unless he can secure a satisfactory price from others, take the premises himself. In such case he is charged with it as personalty belonging to the estate, and it is immaterial whether he takes it in his own name individually or otherwise.*" It he does not bid, but his wife does, and purchases at a price substantially below the amount of the mort- 35. Smith v. Harrigan, 27 Abb. N. C. 322. 36. Buel V. Southwick, 70 N. Y. 581. 37. Hunt V. Alexander, 19 A. D. 76. 38. KuUman v. Cox, 167 N. Y. 411, affg. 42 A. D. 620. 39. Cornell v. Woodruff, 77 N. Y. 203. 40. Valentine v. Belden, 20 Hun, 537; Cook v. Ryan, 29 Hun, 249; Lockman v. Reilly, 95 N. Y. 64, rvsg. 29 Hun, 434; Haberman V. Baker, 128 N. Y. 253. 432 [Adverse Claim. gages, it is still difficult to infer misconduct by the fiduciary.*^ The general guardian of infants purchased on the foreclosure of a mortgage held by her as such guard- ian. It was held that she could convey good title.*^ The assignment of a mortgage by several trustees to one of their number individually has been held im- proper;*^ but if the estate received in cash the face value of the mortgage with accrued interest, it is not apparent what rule of public policy has been violated, for the mortgagee is never entitled to profit beyond the agreed interest. § 610. Assignment for Benefit of Creditors. — A deed by L to A accompanied by a declaration of trust by A to permit L to occupy the premises and receive the rents, to sell in A's discretion, to pay L's creditors and transfer the net balance back to L, shows on its face a scheme to hinder, delay and defraud L 's creditors, and does not pass marketable title to A.** M being financially embarrassed and intemperate conveyed to A, who executed a declaration of trust, that he took for the purpose of satisfying certain of M's creditors and applying the surplus to M's chil- dren. A's title was held marketable, as the facts do not show or imply a general assignment, or furnish notice of fraudulent intent. The bare possibility of fraud is not enough to affect with notice.*^ 7. Adverse Claim. § 611. In General. — A very old case points out that while a title subject to "lawful claims" is unmarket- 41. Potter V. Sachs, 45 A. D. 454. 42. Bayer v. Phillips, 17 Abb. N. C. 425. 43. Priessenger v. Sharp, 59 Super. 315. 44. Howell V. Donegan, 74 Hun, 410. 45. Jacobs v. Morrison, 136 N. Y. 101. ■Adveese Claim, 433 able, yet a frivolous claim, one insincere and without color, affords no ground of objection.^ "A mere claim of a third party," says another old case, "in the ab- sence of any evidence to sustain it," does not affect marketability. 2 Both of these cases seem on the merits to have involved unduly strict application ef these rules, but the rules themselves are correctly stated. A recent instance was the objection by the purchaser in foreclosure that certain fixtures for unfinished houses, such as boilers, radiators and washtubs had been de- livered on conditional sale. It was held, in the ab- sence of proof from the alleged owners, that the mere assertion was insufiicient.* Where the alleged claimant himself intervenes, there is evidently more reason to expect trouble. After fore- closure sale, A, a third party, moved for resale on the ground that the plaintiff had known him to be in pos- session under claim of title through an unrecorded deed when foreclosure was begun. Although A's mo- tion was denied, B, the purchaser, was relieved, for, as the court said, a law suit was plainly threatened.* A careful purchaser who investigates thoroughly the possible claim may disclose enough facts on record, such as depositions in an action to set a deed aside for lunacy, to show that the title is liable to attack. If he also learns the intention of remaindermen to press the claim, he is not obliged to accept a title under the shadow of an impending lawsuit.^ Where the pur- chaser presents "very convincing proof" that a deed in the chain did not express the intent of the parties 1. Tolliard v. Wallace, 2 Johns. 395. 2. "Wilsey v. Dennis, 44 Barb. 354. 3. Murphy v. Smith, 61 A. D. 574. 4. Koechl V. Gate Development Co., 149 A. D. 239, affd. 205 N. Y. 591, without opinion. 5. Brokaw v. Duffy, 165 N. Y. 391, affg. 36 A. D. 147. 434 Adverse Claim. thereto, lie shows ground for relief from his hid be- cause of the probability that such deed may be re- formed.® There can be no adverse claim founded on possession as against a remainderman^ An adverse claim on the part of the purchaser him- self is no objection; it will merge with the title acquired from vendor.^ But vendor cannot set up an equitable title acquired by vendee either as a defense to his own failure to convey or in mitigation of damages.* Where there is not only adverse claim of title by a third party, but possession thereunder, vendor's deed is wholly void as against such person.^" Without posses- sion an overlapping description founded on a sur- veyor's error, though repeated in deeds running through a period of 40 years, does not create an ad- verse claim on the part of the adjoining owner.^^ Long continued, open and notorious use by a neigh- bor raises danger of litigation based upon the claim of an easement although it appears of record that adverse possession cannot successfully be asserted.^^ § 612. Litigation. — Even line existence of actual liti- gation by a claimant does not establish any defect in title,^^ while the defeat of such claim tends to prove that title is good.^* This rule was laid down by a court 6. Scholle V. SchoUe, 113 N. Y. 261, affg. 56 Super. 399, affg. 55 Super. 474. 7. Clarke v. Hughes, 13 Barb. 147. 8. Noble V. Cromwell, 26 Barb. 475; People ex rel. Taylor v. Brennan, 39 Barb. 522. 9. Fletcher v. Button, 4 N. Y. 396, aflfg. 6 Barb. 646. 10. Barlow v. Scott, 24 N. Y. 40. 11. Kidansky v. Peltyn, 118 A. D. 906. 12. Ridley v. Walter, 153 A. D. 65. 13. Hayes v. Nourse, 114 N. Y. 595. 14. Mahaiwe Bank v. Culver, 30 N. Y. 313. Lis Pendens. 435 construing the words "good title" after the litigation had been defeated and discontinued. It was applied in a later case where despite a pending action of eject- ment, defendant was able to prefeent convincing proof of record title with long undisputed possession.^^ But it is a harsh and dangerous doctrine. Its reductio ad ahsurdum appears in the case of Merritt v. Lambert, 7 Paige, 344, where the chancellor decided that a pending ejectment suit was without merit, in spite of a supreme court precedent to the contrary, and in a suit for specific performance by vendor decided in his favor. The . unfortunate vendee, thus compelled to take title, afterwards lost the property in the ejectment suit.^* In a recent case the court of appeals seems to have considered the mere existence of an ejectment suit suf- ficient justification for vendee's refusal to complete ;^'^ and it can at least be said that there is a tendency to permit vendee to await the event of an actual lawsuit^'' or proceeding.^® The fact that a plaintiff in ejectment who has been defeated may still, on paying costs, bring another ac- tion, is of no importance.^" Vendee is under no obligation to bring about an end of litigation in order to free the possession.^^ § 613. Lis Pendens. — As would be expected from the cases cited in the preceding section, it has been decided 15. Methodist Episcopal Church Home v. Thompson, 108 N. Y. 618. 16. See Edwards v. Earmers' Fire Ins. Co., 21 Wend. 467. 17. Eosenberg v. Haggerty, 189 N. Y. 481. 18. Bend v. Ruckman, 17 W. D. 153; Earl v. Campbell, 14 How. Pr. 330; Whalen v. Stuart, 123 A. D. 446, rvsd. on other grounds, 194 N. Y. 446. 19. Curtis V. Ballagh, 4 Edw. 635. 20. Haffey v. Lynch, 143 N. Y. 241. 21. Warren v. Banning, 21 Supp. 883, modified 140 N. Y. 227. 436 'Adverse Claim. again and again that the mere existence of a Us pen- dens against premises is no defect of title. ^^ It is not strictly even the beginning of litigation, since plaintiff may never proceed to service of summons ; and vendee may not rely on it as sufficient ground for refusing to close.^* The test of the lis pendens is the complaint filed therewith. If that states a cause of action affecting the premises, vendee may without looking farther re- ject title.^* If vendor wishes to contend that there is no basis for the action, it is his duty to present his evi- dence of that fact to vendee when the objection is raiseci.^^ Nor will vendor be allowed to contend that the complaint is insufficient in law after the court in the action in which the lis pendens was filed has, though erroneously, decided the contrary. ^^ If the complaint shows that the action cannot be maintained, the title will not be considered doubtful.^'' 22. Grace v. Bowden, 10 A. D. 541; Chambers v. Ackley, 91 Supp. 78; Woodenbury v. Spier, 122 A. D. 396; Weissberger v. Wallach, 124 A. D. 382; Styles v. Blume, 12 Misc. 421, rvsg. 30 Supp. 409; Baecht v. Hevesy, 115 A. D. 509; Hayes v. Nourse, 114 N. Y. 595. 23. Weissberger v. Wallach, 124 A. D. 382, approved 201 N. Y. 590. 24. Simon v. Vanderveer, 155 N. Y. 377, rvsg. 84 Hun, 452. 25. Same; Wilmurt v. McGrane, 16 A. D. 412; Haffey v. Lynch, 143 N. Y. 241. If the case of Styles v. Blume, 12 Misc. 421, rvsg. 30 Supp. 409, decides to the contrary, it must be considered as over- ruled. It is not distinctly stated in that case that the complaint had been filed; but that omission is too technical and slight a basis of distinction, for it was conceded that the action was pend- ing to set aside the. deed through which vendor claimed title — so that a prima facie cause of action certainly existed. The court took the stand that it was vendee 's duty to show that some ground existed for the litigant 's claim. 26. Murphy v. Eox, 128 A. D. 534, approved 198 N. Y. 509. 27. Grace v. Bowden. 10 A. D. 541. Estoppel op Judgment. 437 Or if it affects only an encumbrance subject to wbich the premises are sold.^® As against satisfactory evidence that the cause of action has been settled or has abated or has been final- ly adjudicated, the existence of an uncanceled lis pen- dens is of no consequence.^* On every ground of logic and on the analogy of Simon v. Vanderveer, 155 N. Y. 377, and other cases above cited, it would seem ven- dor's duty to produce such evidence; but he does not appear to have been held thereto in Wilsey v. Dennis, 44 Barb. 354. A canceled Us pendens does not affect title, nor does it form a basis from which deductions may be made that the record does not disclose all the owners.^" A lis pendens against N not filed until after record of N's deed to B evidently cannot affect B's title.^^ Since the lis pendens does not of itself affect title, the purchaser at judicial sale may not object because none was filed in the action in which the sale was de- creed.^^ 8. Estoppel. § 614. Judgment. — Effect. — Few are the titles that are not affected by some form of judicial action. The validity of a judicial decree, by a court with jurisdic- tion, to direct the conveyance of marketable title is elementary and of universal application.^ It is bind- ing on all parties to the action; and where the court 28. Sdnnalholz v. Polhaus, 49 How. Pr. 59. 29. Alpern v. Tarrell, 133 A. D. 278; Haffey v. Lyneh, 143 N. Y. 241. 30. Baumeister v. Demuth, 84 A. D. 394, rvsg. 40 Misc. 22, affd. 178 N. T. 630, without opinion. 31. Zorn v. McParland, 11 Misc. 555 (dictum). 32. Kirk V. Kirk, 12 Supp. 326. 1. Livingston v. Livingston, 56 A. D. 484, affd. 166 N. Y. 601, without opinion. 438 Estoppel. has jurisdiction of all parties interested and the sub- ject matter, the purchaser gets good title, for there is no one who can question the decree.^ The usual rule prevails that a judgment following a pleading establishes such pleading on all issues whether contested or not; that all questions which might have been litigated are settled.' It establishes also the necessary inferences from the allegations of a pleading, as that the mortgage was made to secure money raised for the benefit of the estate, where the complaint alleged the execution of the mortgage pur- suant to a testamentary power of mortgage.* The parties to the action cannot thereafter raise any question — such as the suitability of a guardian ad litem^ — not concerning the jurisdiction of the court or the regularity of the sale. A necessary party not served and not appearing is 2. Blakely v. Calder, 15 N. Y. 617, affg. 13 How. Pr. 476; Hirth V. Zeller, 108 A. D. 198; Lyon v. Lyon, 67 N. Y. 250. 3. Goebel v. Ma, 111 N. Y. 170, affg. 48 Hun, 21; Lewine v. Gerardo, 60 Mise. 261; Matter of Coogan, 177 N. Y. 376, affg. Dres- ser V. Travis, 87 A. D. 632; Hunt v. Alexander, 19 A. D. 76; Paget V. Melcher, 42 A. D. 76. The last named case harshly stretches the rule to cover the allegation, in a trustee 's action against infants to procure leave to sell their real estate, that said infants owned no other real estate. As the infants had no interest to contest such allegation — ^but on the contrary would be benefited by having it established, for the purpose of obtaining immediate relief — it seems rather drastic to hold them bound by it afterwards when a claimant appears for property the infants probably did not know that they technically owned. The rule is also applied in Wein- traub V. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246, to validate a sale by executors to one of themselves (through a dummy) because of their subsequent accounting in which they charged themselves with the proceeds. But the accounting did not expressly show that an executor had acquired the real estate ; and the correctness of the decision may be doubted. 4. Roarty v. McDermott, 146 N. Y. 296, rvsg. 84 Hun, 527. 5. Herbert v. Smith, 6 Lans. 493. Judgment. 439 not cut off. A tenant by the curtesy is such party in partition;* as is a remainderman;^ in foreclosure, a judgment creditor;^ in heirship proceedings, the widower.® An unnecessary party improperly joined — as an al- leged tenant by the curtesy initiate in partition whose wife was not even seized — is not bound.^" A person precluded by statute from assigning or disposing of his interest in income cannot by submit- ting to a judgment voluntarily estop himself from claiming such income or be barred therefrom by a fore- closure.^^ Nor can an infant be indirectly deprived of his real estate by compromising an action brought to establish his claim thereto.^^ A tenant by the curtesy not joined in partition con- veyed after judgment to a defendant whose undivided share was being sold. Such conveyance transfered the curtesy to the defendant but did not bring it within the referee's deed.^^ The evidence in an action may render immaterial certain allegations of the complaint, such as those re- lating to unknown heirs where proof of heirship is pro- duced. Such allegations may then be disregarded and no longer affect title.^* 6. Bogert v. Bogert, G Supp. 893. 7. Paget V. Melcher, 42 A. D. 76; Miller v. Wright, 109 N. Y. 194. 8. Lyon v. Lyon, 67 N. Y. 250. 9. Matter of Clarke, 131 A. D. 688, affd. 195 N. Y. 613, without opinion. 10. Miller v. Wright, 109 N. Y. 194. 11. Matter of Brennan, 21 A. D. 236. 12. Dixon V. Cozine, 64 Misc. 602, affd. 134 A. D. 921, on opinion below, affd. 202 N. Y. 554, without opinion. 13. Bogert v. Bogert, 6 Supp. 299. 14. McQuillan v. McQuillan, 134 Supp. 893, affd. 152 A. D. 910, without opinion. 440 Estoppel. That tlie estoppel operates to validate subsequent sales made in reliance upon even an erroneous judg- ment, so as to bring into privity apparent strangers, is tbe extremely important principle established by Park Hill Co. y. Herriot, 41 A. D. 324. The facts and opinion in that interesting case must be set forth fully even though technically it is not a marketability case. The case arose as follows: — H died devising real estate to trustees with power of sale. In '90 the surviving trus- tee contracted to sell Pel 1 to B who refused to com- plete on the ground that the trustee's power was not sufficient to make good title. The trustee brought specific performance against B, joining as defendants all parties having an interest in H's estate, and the su- preme court held the power ' valid, decreeing specific performance. In '93 the trustee sold Pel 2 to plaintiff. Later the trustee sold Pel 3 to P who refused to com- plete. On an agreed statement between trustee and P a controversy was submitted and the court of ap- peals held the power of sale had terminated and the trustee could not convey good title. Plaintiff, in order to determine claims to real property, brings the pres- ent action against the beneficiaries and trustee under H's will, who now claim that the sale of Pel 2 was in- valid. Held, reversing judgment for defendants, that the action against B necessarily involved the construction of H's will, and the court had jurisdiction to adjust the whole controversy. All the parties thereto are bound by its terms. Plaintiff, though not in privity with B, is in privity with the trustee subsequent to the adjudi- cation of his rights, and took such interest as was therein adjudged. The subsequent decision of the court of appeals did not affe'ct its title. Plaintiff was not a party to that action and could not be bound by it or affected by any subsequent acts of the trustee. "The judgment under which the plaintiff claims Judgment. 441 stands as a valid, binding adjudication, unreversed to this day. Its effect was * * * to declare tlie ex- istence of a power to convey good title to land, and un- der its binding force this title passed. A superior court subsequently says the vest {sic — reason?) for this judgment was wrong, but such court did not as- sume to sweep its foundations away, and now it stands as a bulwark for acts done under it. * * * The protection to the purchasers under the judgment should be upheld in order that uncertainty may not at- tend upon the faith to be given to decrees of a court of competent jurisdiction; otherwise no purchaser would be safe in taking title. If any other rule should be adopted, in order to get a clear and indisputable title the purchaser would be obliged to resist a judgment for specific performance and appeal to the highest court, otherwise his title might be divested by a decision of the court of appeals rendered after a long period of time. ' ' § 615. Adjudications. — As the foregoing paragraphs show, estoppel may be based on a judgment in an ac- tion at law or a decree in a suit in equity. It may also be based on a final order in a special proceeding.^^ Any- order made in the course of a litigation may, if made on notice to all parties interested and if it in- volved the question at issue, settle that question final- ly so as to remove all doubt from the title.^® It will bind a third party (neither defendant nor plaintiff) who voluntarily submitted his claim to the court upon such motion.!'^ It precludes infants from questioning a prima facie voidable transaction.^^ 15. Matter of Bull, 45 Barb. 334. 16. Webster v. Kings County Trust Co., 145 N. Y. 275, affg. 80 Hun, 420. 17. Bergen v. Wyckoff, 1 Civ. Proe. 1. 18. Strauss v. Bendbeim, 162 N. Y. 469, rsvg. 44 A. D. 82. The 4:i2 Estoppel. An order intended to ratify an apparently void sale is not binding upon defendants not served with notice of motion. Although in default they are entitled to such notice and are not estopped without it.^* An order is conclusive not of all questions which might have been litigated but only of those which were. A purchaser applying for relief on the ground of restrictive covenants failed to show that the restric- tion was material. On subsequent proceedings it was held that he might supply such proof.^" The court is presumed to act consciously even in granting an order of formal type, as confirmation of a referee's report of sale; and its decision of all ques- tions actually presented thereon is binding, however complicated and difficult such questions may in fact have been.^^ The parties to an action cannot be estopped by the act of a referee in doing something not demanded by the complaint or authorized by the decree. The ref- eree may not for instance change the description of the premises.^^ A referee's report in ejectment, wherein no 'final judgment had been entered, is not an effectual adjudi- cation.^* A revocable consent not acted upon, though entitled and filed in the action, creates no estoppel.^* A petition for probate not followed by decree has no court upon full presentation of facts had conflrmed a sale to the Bpecial guardian's wife. > 19. McKean v. Hill, 166 A. D. 18. 20. Riggs V. Pursell, 74 N. Y. 370. 21. Corbin v. Baker, 167 N. Y. 128, a£Eg. 56 A. D. 35. 22. Heller v. Cohen, 154 N. Y. 299, 310, rvsg. 9 A. D. 465. 23. Herring v. Berrian, 55 Super. 110, affd. 107 N. Y. 632, with- out opinion. 24. Miller v. Wright, 109 N. Y. 194. Judgment. 443 effect; ^^ nor does testimony by C on the probate of N's ■will, that he (0) never sold N any property except a lot on 37th St., bind N's heirs.2« An order of sale in lunatic's proceedings does not establish the lunatic's title by inheritance as would probate of heirship.^'' § 616. Representation. — The estoppel may extend by representation to persons not parties to the action. A simple and common case of this sort is where benefi- ciaries under a trust are represented by the trustee.^* Beneficiaries made parties after the decease of the trustee to whom no successor has been appointed are also bound.^* Unborn persons may be represented by persons in existence from whom they must spring. When all interested persons in esse are bound, after-born infants claiming through them are also bound.^° When such after-born persons have an interest in premises sold, their share of the proceeds must be pre- served for them by the court, in trust or otherwise ac- cording to circumstances.*^ But when the decision is that such infants have no interest, there is no occasion to make provision for them in the decree.^^ , When the after-born infants take as devisees direct- 25. Matter of Clarke, 131 A. D. 688, affd. 195 N. Y. 613, without opinion. 26. MeGrane v. Kennedy, 16 Daly, 241. •27. Foy V. McGarry, 160 A. D. 329. 28. Clemens v. Clemens, 37 N. Y. 59, affg. 60 Barb. 366. ; 29.' Grady v. Ward, 20 Barb. 543. 30. Adami v. Backer, 29 Misc. 93; Rhodes v. Caswell, 41 A. D. 229. 31. Cheesman v. Thorne, 1 Edw. 629; Monarque v. Monarque, 80 N. Y. 320. 32. Campbell v. Hughes, 69 Misc. 433; Kent v. Church of St. Michael, 136 N. Y. 10. 444 Estoppel, ly under the will, they are not represented by heirs owning a precedent estate subject to be divested.^* Unknown heirs are in the same situation — a fact not infrequently overlooked by practitioners. If they are necessary parties to a partition suit, provision must be made for them in the decree by setting apart their share.** § 617. Default. — It is immaterial whether or not the person liable to the estoppel defended the action. The judgment is equally conclusive upon those who sub- mitted to it by default.** In such case only those who appear are entitled to notices within the action; those in default cannot ob- ject to proceedings taken upon the consent of all other parties.** After judgment has been entered by default for want of an answer, no one can contend that the facts were not as stated in the complaint.*^ § 618. Error.- — Even though the judgment be erron- eous, the parties to the suit are bound thereby, and the purchaser gets good title.*^ It is immaterial how the error arose. It may have been a mere inadvertence,*^ or an arguable decision,*'' provided it was not collusive. 33. Adami v. Gercken, 164 A. D. 472. 34. Casey v. Casey, 19 A. D. 219, rvsg. 19 Misc. 272. 35. Jenkins v. Fahey, 73 N. Y. 355; Abbott v. Curran, 98 N. Y. 665; Matter of Coogan, 177 N. Y. 376. 36. Brown v. Beckmann, 53 A. D. 257; Abbott v. Curran, 98 N. Y. 665. 37. Wallace v. Hanna, 11 W. D. 213. 38. Holden v. Sackett, 12 Abb. Pr. 473; Brown v. Mount, 38 A. D. 440. 39. Weisendanger v. "Westchester Trust Co., 58 Misc. 472. 40. Tolosi V. Lese, 120 A. D. 53; Lindo v. Murray, 157 N. Y, 697; Park Hill Co. v. Herriot, 41 A. D. 324. Judgment. 445 § 619. Collateral Attack. — A judgment rendered by a court with jurisdiction over both parties and subject matter cannot be impeached collaterally.*^ An amend- ment to a judgment, made on notice to those only who had appeared, is equally binding; the validity or reg- ularity of a provision in the judgment not raised by a party to the suit cannot be raised collaterally.*^ Not even a party to the suit can after sale raise a question of regularity as an excuse for not completing his purchase.** Still less can a stranger.** Such an at- tack is regarded as collateral.*^ An administrator's sale was attacked on the ground that the letters of administration were improperly granted because the petitioner did not disclose person- alty in the county. It appeared that before the issue of letters petitioner submitted affidavits showing such personalty. It was held that the surrogate acted upon jurisdictional facts and his determination thereon could not be attacked collaterally; it was not material in what form the allegations were made or how the de- cision was reached.*" After a foreclosure suit brought by. an administra- tor has proceeded to judgment no irregularity in his appointment will be considered, nor can such appoint- ment be assailed even on jurisdictional grounds.*^ 41. Jenkins 7. Fahey, 73 N. Y. 355, rvsg. 11 Hun, 351. 42. Brown v. Beckmann, 53 A. D. 257. 43. Coneklin v. Hall, 2 Barb. Ch. 136. 44. Matter of Bull, 45 Barb. 334; DeForest v. Farley, 62 N. Y. 628, affg. 4 Hun, 640. 45. Parish v. Parish, 175 N. Y. 181, suggesting that if the attack raises in the mind of the court a doubt whether infants were prop- erly protected, the court may take steps to have the judgment vacated. 46. O'Connor V. Huggins, 113 N. Y. 511. 47. Abbott V. Curran, 98 N. Y. 665, affg. 20 W. D. 344. 446 Estoppel. Lack of jurisdiction is, however, a ground for attack where there are persons, such as after-born children, who might claim that their interests had not been cut § 620. Appeal. — "A judicial sale made pursuant to the decree or judgment of a competent court, having juris- diction of the subject-matter and of the parties, passes title to the purchaser, even though the judgment should afterwards be reversed or set aside for error or irregularity on appeal. ' ' ** Consequently it is no objec- tion to title that the time to appeal has not elapsed;'" nor that an appeal without stay is actually pending.'^ § 621. Deed. — Warranty. — A grantor who conveys by warranty deed is estopped to claim any subsequent- ly acquired title; whatever interest he may acquire thereafter passes by virtue of the warranty to the grantee and his assigns. Such interest enures to the benefit of the ultimate grantee, though he has taken title by a bargain and sale deed — or even a quitclaim.'- Some cases speak loosely of estoppel where the de- cision is simply a determination of grantor's intent. Thus an error in description may be cured by adding that the premises conveyed are the same premises re- ferred to in another deed wherein they are correctly described.'* 48. Monarque v. Monarque, 80 N. Y. 320, rvsg. 19 Hun, 332. The judgment objected to was rendered in an action construing a will which contained no trusts. 49. Holden v. Sackett, 12 Abb. Pr. 473. 50. Adami v. Backer, 29 Misc. 93. 51. Hening v. Punnett, 4 Daly, 543. 52. Jaepbs v. Fowler, 135 A. D. 713, and dictum. 53. Bernstein v. Nealis, 144 N. Y. 347. In Pais. 447 A revocable consent not acted upon creates no estoppel.^* A person under disability cannot be estopped.^^ § 622. Covenant. — A mortgage is wiped out by a covenant against encumbrances made by the mort- gagee on conveying after obtaining title. ^® § 623. Certificate. — An estoppel certificate execut- ed by A only, averring that the two owners of the premises, A and D, are partners, is not binding upon § 624. In Pais. — Estoppel in pais is more closely allied to the principles of acquiescence and ratifica- tion,^® than to those of estoppel by judgment or by deed. It is unusual to find a strict estoppel in titles — an intentional representation of fact relying upon which another person has acted to his detriment; — but it more often happens that a person executes or accepts some instrument indicating that he makes no claim of title to a certain parcel of land. If the prem- ises continue free from claim, the title will be con- sidered marketable upon the principle of what several cases call an estoppel of record. A purchase money mortgagee is so estopped to question his own deed to the mortgagor.^^ A deed purporting to convey part of land formerly of T (and still his of record) executed 54. Miller v. WrigM, 109 N. Y. 194. 55. Dominick v. Michael, 4 Sandf. 374; Matter of Brennan, 21 A. D. 236. 56. Greenfield v. Mills, 123 A. D. 43. 57. Smyth v. Eowe, 33 Hun, 422, affd. on opinion below, 98 N. T. 665. 58. See 5 636. 59. Heiberger v. Karflol, 202 N. Y. 419, a%. 134 A. D. 935. 448 Curing Defects, by K and witnessed by T estops T from denying a prior conveyance by himself to K;"" but does not estop him beyond the land included within such deed. A person under disability cannot be estopped.^^ Where it appears upon undisputed facts that the conduct of claimant (or his ancestor) has precluded him from maintaining the claim, it may be disregard- ed.®^ This situation has been conveniently, though loosely, referred to as an estoppel; strictly speaking it seems rather an application of the broad doctrine of equity that a wrongdoer may not complain. 9. Curing Defects. § 625. Existence of Curable Defects. — Errors of practice in the action or proceedings leading to a ju- dicial sale may be remedied on application to the court; they do not constitute conclusive ground for re- jection of title.^ So also numerous minor defects may be remedied by vendor on private sale, upon vendee's pointing them out by objection, and if vendor perfects title within a reasonable time, he may demand perfor- mance of the contract.^ The existence of removable defects does not relieve vendee from the necessity of tender and demand. Nor does it preclude a party to the contract from arrang- ing to perfect title within a reasonable period.^ 60. College Point Savings Bank v. Vollmer, 44 A. D. 619, affd. 161 N. Y. 626, without opinion. 61. Dominick v. Michael, 4 Sandf. 374, 423 {dictum) ; Matter of Brennan, 21 A. D. 236. 62. Wood V. Nesbitt, 62 Hun, 445 (dictum). 1. Farmers' Loan & Trust Co. v. Dickson, 17 How.Pr. 477. 2. Hartley v. James, 50 N. Y. 38 (dictum) ; Baumeister v. Demuth, 84 A. D. 394. 3. Selover v. Chaffee, 20 "W. D. 115 ; "Westchester & Bronx Realty & Development Co. v. Whitlock, 80 Misc. 489. Oppoetunity. 449 Even at law vendor must be given an opportunity to remove tlie defects before the expiration of the closing day.* The owner of premises deriving title through sale in foreclosure may apply in that action for an amend- ment of the decree such as to show of record the regu- lar sale which was actually made instead of the irreg- ular one which was ordered.^ But he may not correct a substantial defect in that manner. Where the defect is fatal, as failure in lunatic's proceedings to have a reference, the proper course is 'to institute new pro- ceedings at the expense of the former owner, requiring the purchaser to repeat his bid." Where the court on a first appeal has directed amendments, the higher court on a further appeal will assume such amendments to have been made.'' § 626. Opportunity to Remove Defects. — Under the strict application of legal rules where neither party invokes the aid of equity, vendor is required to have perfected his title before time for performance has ex- pired. A demand upon vendor who has no title is not met by a contract of purchase under which vendor obtained title a few days later.® But where the defects are readily curable it becomes a question for the jury whether vendee waited a reasonable time for vendor to remove same.^ 4. Campbell v. Prague, 6 A. D. 554. .5. Hogan v. Hoyt, 37 N. Y. 300. 6. Matter of Valentine, 72 N. Y. 184, rvsg. 10 Hun, 83. 7. Van Wyck v. Hardy, 4 Abb. Dec. 496, alEg. 11 Abb. Pr. 473; Eogers v. McLean, 34 N. Y. 536, affg. 11 Abb. Pr. 440, rvsg. 31 Barb. 304. 8. Camp V. Morse, 5 Den. 101. 9. Campbell v. Prague, 6 A. D. 554. Title was to close at 11 a. m. ; vendee left at 11 :35 ; vendor who arrived five minutes later <30uld have perfected title within half an hour. 450 Cubing Defects. Tlie purchaser of lands at judicial sale may also in- sist upon good title. All serious defects pointed out by him must be remedied by the plaintiff before the latter can compel the purchaser to complete;^" and especially must plaintiff amend omissions and unseasonable pro- cedure so as to render his judgment regular and binding upon all parties in interest." Ln equity vendor will always be given a reasonable opportunity to remove defects. The statement of this rule first appears in very guarded form — that a reason- able time for clearing off encumbrances such as mort- gages will be allowed when vendee is in possession and time is not of the essence ;^^ but it was soon extended to a case where vendee did not have possession;^* and is now well established in the broad terms above recited.^* How much time will be allowed depends upon cir- cumstances. When a release of dower was procured and tendered in seven days, purchaser was compelled to complete.^^ An interval of seventy days following an adjourimient of thirty days was held not too long where the purchaser had not been prejudiced by the delay.^* An indefinite time was allowed under a con- tract providing for an additional quitclaim to be furnished after closing and a substantial purchase money mortgage not collectible until production of the quitclaim.^'' 10. Fryer v. Rockefeller, 63 N. Y. 268. 11. Crouter v. Crouter, 133 N. Y. 55. 12. More v. Smedburgh, 8 Paige, 600, affd. 26 "Wend. 238. 13. Ellsworth v. Cuyler, 9 Paige, 418. 14. Greenspan v. Saladino, 126 A. D. 331; Hoar v. Hoar, 14? A. D. 941; Schueler v. Dooley, 149 A. D. 814. 15. Mock V. Leonard, 167 A. D. 921. 16. Cornell v. Cornell, 14 S. R. 612, affd. 109 N. Y. 644, without opinion. 17. Ryerson v. Willis, 81 N. Y. 277, affg. 8 Daly, 462. Completing the Record. 451 The time required to secure a deed from a referee traveling in Europe, thougli referred to by the court as "short" and "reasonable" was nevertheless held sufficient to relieve a purchaser who stood upon his rights, refusing any adjournment whatever.^^ When either party brings the contract into equity for enforcement, the purchaser must perform if upon the trial title has become marketable, provided mean- while nothing has happened to his prejudice.^^ In fact the court will hold the case open and give vendor an opportunity to tender effectual deeds.^** So of a. title on judicial sale where purchaser as a party had. notice of the defect.^^ § 627. Completing the Record. — A purchaser object- ing to the absence of a deed from the chain of title is amply protected by the court's instruction to the plaintiff to have such deed recorded.^^ A purchaser objecting to defects in the procedure of the action wherein sale was decreed will be required to carry out his contract upon plaintiff's seasonably- filing such papers as are needed to complete the rec- ord, e. g., proof of service ;2* summons containing the names of all the defendants^* and proper signature ;25 18. March v. Marasco, 165 A. D. 348. 19. Pakas v. Clarke, 136 A. D. 492; Clute v. Robison, 2 Johns. 595; Jenkins v. Fahey, 73 N. Y. 355, rvsg. 11 Hun, 351. 20. Grillenberger v. Spencer, 7 Misc. 601. 21. Miller v. Wright, 109 N. Y. 194. 22. Coates v. Fairchild, 14 W. D. 189, affd. 89 N. Y. 631, on opinion below. 23. Waite v. Simons, 121 N. Y. 712; Farmers' Loan & Trust Co- V. Dickson, 17 How. Pr. 477 {dictum) ; Bogert v. Bogert, 45 Barb. 121. 24. Van Wyck v. Hardy, 4 Abb. Dec. 496, affg. 11 Abb. Pr. 473. 25. Farmers' Loan & Trust Co. v. Dickson, 17 How. Pr. 477 [dictum). 452 Cubing Defects, [ infant's petition for guardian ad litem f^ bond of guardian ad litem f' affidavit of guardian ad litem's qualifications ;28 afiidavit of defendant's default ;2» judgment roU.^" Such corrections are made nunc pro tunc. Similar amendments correcting rather than com- pleting the record are considered in the next sections, and numerous other examples of both kinds are scat- tered throughout the cases. The evidence in the litigation between vendor and vendee may supply record proof of marketability, as where an owner is shown to have been a mere conduit or trustee so that no dower right attached in his wife. In such case purchaser should complete.^^ . § 628. Corrections. — Affidavits. — A plaintiff may, by affidavits filed upon the motion to compel purchaser to complete, supply the proof necessary to show that a step in his procedure objected to as irregular was im- material f^ or that facts actually existed justifying the procedure.^* § 629. Amendment. — A misnomer in the summons, as "Lucy Shell" for "Lucy Shields," is prima facie objec- tionable, but may be amended if the correct person was served.^* So of a summons mailed to a place other 26. Van Wyck v. Hardy, 4 Abb. Dec. 496, a%. 11 Abb. Pr. 473. 27. Waring v. "Waring, 7 Abb. Pr. 472; Croghan v. Livingston, 17 N. Y. 218. Jennings v. Jennings, 2 Abb. Pr. 6, to the contrary may be considered overruled. 28. Bogert v. Bogert, 45 Barb. 121. 29. Bogert v. Bogert, 45 Barb. 121. 30. Jennings v. Jennings, 2 Abb. Pr. 6 (dictum). 31. Stehlin v. Golding, 15 S. R. 814; Plant v. Moores, 142 N. Y. 646. 32. Bergen v. WyckofE, 1 Civ. Proc. 1. 33. Rogers v. McLean, 34 N. Y. 536, affg. 11 Abb. Pr. 440, rvsg. 31 Barb. 304. 34. Thorn v. Shell, 15 Abb. Pr. N. S. 81. OOBEECTIONS. 453 than the one directed in the order, provided same was also mailed to the proper place.^^ § 630. Kunc Pro Tunc. — Such corrections are usually made by order entered nunc pro tunc as of the time when the error occurred. The court has broad power to order such amendments and exercises it liberally.** Where the court has jurisdiction and the defect com- plained of is a mere irregularity, it may be amended upon any form of application which brings the ques- tion before the court on due notice. A few examples are: — Appointment of guardian ad litem on petition by in- fant's mother erroneously alleging that the infant was over 14, same being also defective in verifi- cation ;*■' Order of publication directing mailing of notice of the object of the action instead of complaint;** Changing name of defendant in summons;** Description of the premises in judgment,*" or in all papers ;*^ Ee-filing complaint lost from files ;*^ Suggestion of death of defendants.** 35. Herbert v. Smith, 6 Lans. 493. 36. Tobin v. Carey, 34 Hun, 431. 37. Baumeister v. Demuth, 84 A. D. 394, rvsg. 40 Misc. 22, affd. 178 N. Y. 630, without opinion. Evidently amendment of these errors required no notice, for the only notice attempted to be given to certain parties was served on their attorneys more than three years after judgment. 38. Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402, affg- 111 A. D. 578. The complaint was in fact mailed. 39. Manhattan Savings Institution v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 40. Wood V. Martin, 66 Barb. 241. 41. Doremus v Doremus, 66 Hun, 111. 42. Waring v. Waring, 7 Abb. Pr. 472. 43. Same. 454 CuKiKG DbfeotS. Notice need not be given to parties who liave not ap- peared;** nor to general creditors when after search the referee has determined that there are none.*^ Bnt a party who acquired a lien between the filing of the lis pendens^ and the filing of the complaint was under Code Proc, § 132, entitled to notice.** And when more than a year has elapsed since judgment the notice should be given to the parties, not to their at- torneys.*^ Nor is it necessary that the amendments should actually have been made even when plaintiff moves to compel purchaser to complete*^ — although the court would doubtless require them to be made, if purchaser should insist, as a condition of granting the appli- cation. No amendment can cure a nullity.*^ The court must have jurisdiction.^" Neither a defendant served by publication^^ nor an inf ant^^ can regard as null a judgment entered against him after he has been duly summoned. An irregular- ity even though it consist of the omission of a step, such as taking proof of the facts upon reference to compute in foreclosure, directed expressly because of 44. Livingston v. Mildrum, 19 N. Y. 440. 45. Doremus v. Doremns, 66 Hun, 111. 46. Weeks v. Tomes, 16 Hun, 349, affid. 76 N. T. 601, on opinion below. Such lienor is now cut off by the lis pendens. 47. Walter v. De Graaf, 19 Abb. N. C. 406. 48. Livingston v. Mildrum, 19 N. Y. 440; Manhattan Savings Institution v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 49. Schumaker v. Grossman, 2 Mo. Law Bui. 94, affd. 12 W. D. 99 — order of publication without proof of due diligence. 50. Bellamy v. Guhl, 62 How. Pr. 460 — neither parent nor guar- dian of infant under 14 served; Walter v. De Graaf, 19 Abb. N. C. 406. 51. Brody, Adler & Koch Co. V. Hochstadter, 160 A. D. 310. 52. Ames v. Danzilo, 158 A. D. 232. COEEECTIONS. 455 the presence of such defendants in the action, can nevertheless he corrected nunc pro tunc. § 631. Confirmation of Referee's Report. — Confirma- tion of the referee's report of sale cures irregularities therein, e. g., offering purchasers more favorable terms than those prescribed by the decree f^ omission of cer- tain lots from advertisement ;=* sale of two lots to- gether;^' designation of newspaper;'* insufficient notice.'^ § 632. Certificates. — A deed defectively acknowledged may be reacknowledged;'® or the notary may execute a new certificate of acknowledgment reciting facts pre- viously omitted:'* An affidavit taken out of the state may be sent back for county clerk's certificate;"" and where the exempli- fication of a document is objected to, the proper course is to permit correct certificates to be filed within a specified time nunc pro tunc.^^ § 633. Deeds. — An error or ambiguity in a conveyance may be cured by a deed of correction. A deed was executed to Frank H. Finch of N. Y. and Frank H. Finch of N. J. The following year it was conveyed by Frank H. Finch of N. J. A subsequent vendee rejected title on the ground that the interest of Frank H. Finch of N. Y. was still outstanding, and obtained judgment to that effect. The owner then procured a deed from 53. Herbert v. Smith, 6 Lans. 493. 54. Woodhull V. Little, 102 N. Y. 165. 55. Duer v. Dowdney, 11 S. R; 301. 56. Connor v. Connor, 20 Civ. Proc. 308. 57. Bechstein v. Schultz, 120 N. Y. 168, a%. 45 Hun, 191. 58. Grillenberger v. Spencer, 7 Misc. 601. 59. Langdon v. ScMff, 189 N. Y. 548. 60. Waite v. Simons, 121 N. Y. 712. 61. Rogers v. McLean, 34 N. Y. 536. 456 Cueing Defects. Frank H. Fincli formerly of N. Y. now of 111., reciting , that he was the sole original grantee and made this deed to correct his former deed; and it was held. that, title was thereby rendered marketable.*^ The correction deed prevails over the original deed, even though itself containing a new error."* Grantee from the start gets equitable title to all that grantor intended but failed to convey, as shown by a subsequent deed of correction.** § 634. Conveyances. — Liens. — A release from the, lienor discharges the lien. It may be made directly to vendee by lienor's executors,*^ and may be in the form of a quitclaim.** It may also be in the ordinary form of satisfaction of mortgage.*'^ § 635. Title. — The fee or any interest therein may be united in the grantor by conveyances from parties im- properly omitted from an old partition suit;*^ but when the omitted party M after decree conveys to a former part owner, C, M's interest remains outstanding in C, and the defect is not cured.** Dower''" or equitable title''^ may be released directly to vendee. 62. Lynch v. Rogers, 150 A. D. 311. 63. Builders' Mortgage Co. v. Berkowitz, 134 A. D. 136, and see 142 A. D. 57, affd. 201 N. Y. 596. 64. Smyth v. Eowe, 33 Hun, 422, affd. 98 N. Y. 665, on opinion below. 65. Bias v. Glover, Hoff. 71. 66. H. & H. Reiners v. Niederstein, 55 A. D. 80. 67. Hall V. Partridge, 10 How. Pr. 188. 68. Bergen v. Wyckoff, 1 Civ. Proe. 1. The decision in Kohler V. Kohler, 2-Edw. 69, that such omission cannot be made good to the purchaser on partition sale by a deed from the omitted party is not supported Jjy any valid reason and surely would not be fol- lowed to-day. 69. Bogert v. Bogert, 5 Supp. 893. 70. H. & H. Reiners v. Niederstein, 55 A. D. 80. 71. Grady v. Ward, 20 Barb. 543. Ratification,. 457 When all possible executors and trustees and all mesne grantees offer to join in the deed, there can be no question about the validity of the resignation of one of them and their conveyances.''^ In like manner where the interests of both trustee and beneficiary are duly tendered, it is not necessary to determine whether the trust 'was valid or title had vested in the beneficiary under 1 R. S. 728, § 49. A sale in infant 's proceedings was defective because the special guardian E took title individually. Sub- sequently upon petition by E and the infant showing that E had acted in good faith, E was allowed to join as special guardian in the conveyance tendered by her grantee M, and title so reinforced was held market- able.'^* But vendor cannot rely upon a conveyance which he has himself repudiated as void in proceedings for the sale of an interest acquired in hostility to such con- veyance.''^ § 636. Ratification. — Acquiescence. — Consent to ir- regular legal proceedings''^ or an offer to join in the conveyance''^ precludes the parties so acquiescing from afterwards disputing the title. But the consent should be something more than a revocable offer not acted upon, and the facts relied upon to show acquiescence should be of record.''^ Long acquiescence in a judicial decree is said to pre- 72. Farrar v. McCue, 89 N. Y. 139, rvsg. 26 Hun, 477. 73. People v. Open Board of Stock Brokers' Building Co., 49 Hun, 349, affd..ll2 N. Y. 670, on opinion below. 74. Buderus v. Immen, 20 W. D. 88. 75. Weinstock v. Levison, 26 Abb. N. C. 244. 76. Manhattan Savings Institution v. Norton, 26 Hun, 474, affd. 89 N. Y. 607, on opinion below. 77. Knevals v. Prince, 10 Supp. 676. 78. Miller v. Wright, 109 N. Y. 194. 458 Curing Defects. elude tlie parties from questioning the legal theories upon which it was founded.''* § 637. Acceptance of Proceeds. — A person who ac- cepts the proceeds of a sale cannot afterwards claim to recover the property from the purchaser. He can- not, for instance, assert as against purchaser's title that the description in the complaint and decree in partition did not embrace the entire premises described in the advertisement of sale;*" or that more real estate was sold than was necessary to satisfy the mortgage;*^ or that executors sold without consideration;*^ or that a trustee purchased individually;** or that the mort- gage covered a larger interest than mortgagor then owned.** A widow who has accepted an annuity in lieu of dower cannot thereafter claim a dower lien on the premises.*^ A creditor who as purchaser at an execu- tion sale claimed the fee and took the surplus on fore- closure cannot question the foreclosure title on the ground that he though a necessary party thereto; was omitted.** Beneficiaries are concluded by their trustee 's receipt of proceeds ;*'' as are stockholders.** Nor can a grant- or object that his grantee was not duly incorporated.** 79. Lewine v. Gerardo, 60 Misc. 261 — 28 years. There seems in this case to have been a legal estoppel. 80. Garner v. Bird, 57 Barb. 277. 81. McBride v. Lewisohn, 17 Hun, 524. 82. Binzen v. Epstein, 58 A. D. 304, a£Ed. 172 N. Y. 596. 83. Kahn v. Chapin, 152 N. Y. 305, affg. 84 Hun, 541. 84. Hirth v. Zeller, 108 A. D. 198. 85. Totten v. Stuyvesant, 3 Edw. 500. 86. Siegel v. Anger, 13 Abb. N. C,. 362. 87. Rhodes v. Caswell, 41 A. D. 229. 88. Wentworth v. Braun, 78 A. D. 634, affg. 38 Misc. 702, affd. 175 N. Y. 515, without opinion. 89. Stoker v. Schwab, 28 W. D. 510. In the report of this case Eatification. 4:59 In order to establish a ratification it must appear that the party receiving the funds is or duly represents the party entitled to complain ;8'' and that he is aware of the transaction intended and effected.*^ An award in street opening proceedings was based upon the theory that all easements, public and private, in the pre-existing streets were lost. The abutter hav- ing himself made such claim and having accepted an award into which it entered as an element of damage cannot thereafter, nor can his successors, contend for a private easement over the bed of the discontinued street. Although the legal theory of the award was erroneous, the abutters are "estopped."^^ § 638. Time. — ^With the passage of years liens ex- pire and claims become outlawed. It is often possible to point to a statute barring the claim in question within a period now elapsed, as a judgment in ten years,*^ or any and every direct personal claim to re- in 56 Super. 122, the words " grantor " and " grantee " are transposed. 90. Taylor v. Klein, 47 A. D. 343, affd. 170 N. Y. 571, without opinion. The decision turns on the extreme proposition that the committee of a lunatic appointed without notice to the lunatic himself cannot even after notice to all the lunatic's heirs and next of kin (apparent) ratify a technically voidable transaction. 91. Heller v. Cohen, 154 N. Y. 299, rvsg. 9 A. D. 465. The ref- eree's deed in partition described the premises correctly, but all other descriptions, including that in the referee's report and order -.confirming same, were wrong; hence it cannot be said that the par- ties knew what the referee had done. The language of the court should not be taken too literally. No reason is apparent why es- jtoppel or ratification should be limited, as intimated, to " author- ized " acts. The owners could have conveyed. "Why could they not ratify any conveyance whatever? 92. Barber v. Woolf, 167 A. D. 627. 93. Wessel v. Cramer, 56 A. D. 30. 4:6,0 Cueing Defects.. cover real estate in thirty years.^* The right to set aside a voidable purchase by executors is barred ten years after their accounting.^^ After the lapse of many years the probability of dis- turbance becomes negligible without reference to spe- cific statutes. A transaction voidable by infants in 1828 may be regarded as the source of marketable title in 1872 — 44 years later.^*' The court can raise almost any presumption to strengthen such a title.^^ The at- tempt to rest the title on a presumption is, however, un- satisfactory. The underlying principle is perhaps only an extension of the public policy that has become crys- tallized in statutes of limitation and that in equity still retains some elasticity under the doctrine of laches.^* It is also akin to the doctrine of ratification, as appears by the decision in Kahn v. Chapin, 152 N. Y. 305, affg. 84 Hun, 541, to the effect that after 20 years bene- ficiaries who have received the surplus in foreclosure would not be allowed to avoid the sale.^® So after 33 years it may be taken for granted that all creditors have accepted a voidable assignment for their bene- fit.^"" A treaty provided that an alien may sell his in- heritance within two years, "which term may be rea- 94. New York Steam Co. v. Steam, 46 Hun, 206, holding also that the state's right to claim an escheat was barred in 20 years. The latter doctrine is doubted in Meighan v. Robe, 166 A. D. 175. 95. McCarty v. Downes, 161 A. D. 667. 96. Herbert v. Smith, 6 Lans. 493. 97. Kip V. Hirsh, 103 N. Y. 565, rvsg. 53 Super. 1. 98. Hayes v. Nourse, 114 N. Y. 595, holding that an action of specific performance in which no progress had been made for 28 years (not 47 as the opinion states) is so far abandoned that the plaintifE therein would not be allowed to push it farther; Johnson V. Duncan, 2 How. Pr. N. S. 366. 99. Binzen v. Epstein, 58 A. D. 304, affd. 172 N. Y. 596, without opinion. 100. Morrison v. Brand, 5 Daly, 40. Ratification. 461 sonably prolonged according to circumstances;" after seven years without application by the heirs the possi- bility of any tribunal's granting an extension is too remote to affect title.^i That heirs and devisees should after 15 years attack a title upon the ground that their testator's devise to a religious corporation exceeded its limit of receivable real estate is also too remote to con- stitute an objection."- Although the liberal spirit of these decisions is com- mendable, a serious difficulty in the application of the vague principle therein outlined lies in the fact that the owner and the claimant are often in no such relation of privity that the owner could interpose his equitable objection. Even if the owner knew, how could he in the case of voidable assignment for benefit of creditors above cited, for instance, prevent the creditors from setting the assignment aside even after many years; and if they then were not outlawed from recovering the real estate, a purchaser with notice would have no strong equity against them. This difficulty has led courts from time to time to demand proof that claim- ants are really outlawed before adjudging the title marketable. Where there is no statute of limitations at all, as against an assessment, the period of twenty- one years is too short to cure title on the theory that the lien has through staleness become unenforcible.^"* Nor should a voidable transaction be considered rat- ified in 20 years where there is nothing to show that infancy, ignorance,, concealment or misrepresentation may not have existed to excuse delay.^"* 101. Wieland v. Muller, 65 How. Pr. 245. 102. Moskowitz v. Hornberger, 20 Misc. 558. 103. Wood V. Squires, 1 Hun, 481, rvsd. 60 N. T. 191, on other grounds. 104. People v. Open Board of Stock Brokers' Building Co., 92 N. Y. 98, rvsg. 28 Hun, 274, in part. 462 Curing Defects. Where the contingency to be outlived is physical and not mental, the computation may be even stricter. A devise in trust for daughters, remainder to their chil- dren, cross remainders to their issue, created a period of uncertainty of 63 years, as follows : — The daughters who took as beneficiaries in 1817 might have child as late as 1839 who would die in childbirth in 1859 leav- ing issue to whom a right of action would accrue in 1880.105 The lapse of a party's right to object to an irregu- larity in judicial proceedings is sometimes referred to as resting upon •laches, i"® and doubtless may so rest in an occasional case; but it is ordinarily more satis- factory to include it as one of the effects of a binding judgment. § 639. Legal Proceedings. — The supreme court has general equity jurisdiction to compel a vendor to exe- cute a second deed after the original instrument has been lost without having been recorded; and such re- lief will be extended to the vendee as against vendor's devisees. The vendor and his successors cannot be per- mitted to retain record title after having conveyed.^"'' An action to quiet title under the Code is technical. The complaint must allege all the facts recited in the statute, such as possession and, formerly, adverse claim. In the absence of such strict compliance, the judgment is ineffective to cure defects.^"^ An action to register title is not adapted to cure de- fects. If the title shows on its face that a certain per-- son has an interest in the premises, it is not marketable 105. McPherson v. Smith, 49 Hun, 254. 106. Clemens v. Clemens, 60 Barb. 366, affd. 37 N. Y. 59. 107. Kent v. Church of St. Michael, 136 N. Y. 10. 108. Lese v. Metzinger, 54 Misc. 151. Legal Proceedings. '463 in plaintiff; nor is it rendered marketable either by tbe examiner's certificate to that effect, or by such claim- ant's default."^ After contracting to buy the premises for |9000, a city condemned and paid f9500. It will be presumed that the condemnation was for the purpose of curing a defect in title."" 109. Barkenthien v. People, 213 N. Y. 554; Partenf elder v. Peo- ple, 211 N. Y. 355, aflg. 157 A. D. 462. 110. Tyler v. Seller, 76 Misc. 185. CHAPTER X. EIGHTS AND REMEDIES. 1. Objections. § 650. Duty of Making. — Vendee is under no obliga- tion to examine the title ; he may, if he chooses, accept the conveyance and rely for his protection upon the covenants in the deed.^ If, as is the almost universal custom with city real estate, he prefers to examine be- fore closing, he must give timely and intelligible no- tice of curable defects in order to justify his refusal to complete. Where the objection is to the form of the deed or the description therein or to a nominal encum- brance, the objection should be made in time to give vendor an opportunity to correct the deed and remove the encumbrance.^ At judicial sale the court does not guarantee title, and as no covenants are contained in the deed it is in- cumbent on the bidder to examine title. The court, on his pointing out a defect or impediment, vrill not com- pel him to complete; but he is not protected by mak- ing an untenable objection.^ Nor is there any obliga- tion on the parties to a partition suit to establish af- firmatively that there are no encumbrances against the property.* The purchaser must show some substantial defect, which is not done unless it appear that the per- 1. Burwell v. Jackson, 9 N. T. 535. 2. McWhorter v. McMahon, 10 Paige, 386, affg. Clarke, 400; Ellsworth V. Cuyler, 9 Paige, 418; Cleveland v. Burrill, 25 Barb. 632; Benson v. Cromwell, 26 Barb. 218; Pangburn v. Miles, 10 Abb. N. C. 42. 3. Williamson v. Field's Executors, 2 Sand. Ch. 533. 4. Noble V. Cromwell, 26 Barb. 475. (464) FoKM OF Objections. 465 son who executed the instrument alleged to be defec- tive had some title.' A highly technical objection may be so trivial as to indicate lack of good faith, as for instance: — Overdue mortgages known to vendee and arranged to be paid off out of the purchase money ; a fence covenant which could be fulfilled at a cost of fifty cents per year ; street ■opening proceedings dormant over fifteen years with- out confirmation of report.® A vendee who at first obtained several adjournments and asked to be released because his bid was too high, «annot afterwards upon discovering a substantial but curable defect insist upon an immediate release from his bid. The delay has been his own fault and he ■cannot now complain if he is required to give the owner a reasonable time within which to tender mar- ketable title.'' § 651. How Made. — No particular form is prescribed in which the objections must be made. It is not suf- ficient for vendee to say that he is not satisfied with the title; he must point out some encumbrance upon it or some claim against it.* When, however, the defect cannot be cured, any reference to it in the statement of objections, though indirect, will be deemed suffic- ient.^ And in many such instances the purchaser is not confined at all to his original objections.^" 5. Piatt V. Finek, 60 A. D. 312; Hubbard v. Housley, 43 A. D. 129, affg. 27 Misc. 276, affd. 160 N. Y. 688, without opinion. 6. Keating v. Gunther, 10 Supp. 734. 7. Merchants' Bank v. Thomson, 55 N. Y. 7. 8. Polliard v. Wallace, 2 Johns. 395. 9. Conlen v. Rizer, No. 2, 110 A. D. 887. 10. Darrin v. Hatfield, Seld. Notes 38, rvsg. 4 Sand. 468; Benson -V. Cromwell, 26 Barb. 218. When new objections may be raised in court and when defects will be noticed by the court on its own motion are discussed more fully below. 466 Objections. A demand for an affidavit of solvency of vendor's grantor was construed by the court as a declaration that title was defective.^^ § 652. When Made. — The purchaser is not required to look out for defects of title at the time of making his contract; he may contract for good title in spite of the existence of an encumbrance which a search would have revealed, and may object later that such encum- brance prevents vendor from fulfilling his obligation.^^ He may fall back upon such objection after having raised another which proves untenable.** Vendor is entitled to notice of objections before suit is brought." A formal or technical objection must be raised at the latest on the closing date/* when any defect whether or not specified in vendee's statement, may be taken advantage of.^® After that time vendee may still ob- ject to substantial defects, such as mortgage,*^ in- choate dower,** curtesy,*^ damage by fire,^" deficiency in area ;^* Brundage clause in mortgage.^^ He may raise the objection on the motion to compel him to complete, in the pleadings, on the trial, or even on appeal. The 11. Wormser v. Garvey, 4 Hun, 476. 12. Burwell v. Jackson, 9 N. Y. 535. 13. Mutchnick v. Davis, 130 A. D. 417. 14. Benson v. Cromwell, 26 Barb. 218. 15. People ex rel, Taylor v. Brennan, 39 Barb. 522; Winne v. Reynolds, 6 Paige, 407; Hening v. Punnett, 4 Daly, 543. 16. Darrin v. Hatfield, Seld. Notes 38. 17. Pierce v. Tuttle, 57 N. Y. 636. 18. Merchants* Bank v. Thompson, 55 N. Y. 7. 19. Bogert v. Bogert, 5 Supp. 893. 20. Listman v. Hickey, 65 Hun, 8, affd. 143 N. Y. 630, on opinion below. 21. Nicklas v. Keller, 9 A. D. 216. 22. Rosenberg v. Feiering, 121 A. D. 190. [Who Can Object. 467 remark of the court in Euhe v. Law, 3 W. D. 157 — "The objections considered in the court below are the only- ones which the plaintiff stated when he refused to com- plete, and to them he must be confined" — must be lim- ited to the purely technical objections which apparent- ly were all that purchaser attempted to raise at gen- eral term. In the court of appeals it is possible that a stricter rule would be applied and that that court would refuse to consider an objection not raised by exceptions at the trial, as indicated by the opinion in Looff V. Lawton, 97 N. Y-. 478; but even in that case, as appears by the opinion of the general term, 7 W. D. 217, the objection was one that could have been over- come on timely notice. Vendee may not object to a defect due to circum- stances arising without vendor's fault after the closing date.^* § 653. By Whom. — Certain objections are limited to those directly affected. For instance, irregularities in actions and judiciar proceedings may be objected to by the parties, but they may not be noticed collaterally ; nor after judgment are they any objection to title even at the instance of a purchaser in the proceedings in ques- tion.^* But when such objection is raised in an action before completion of the sale, t^e court may in its dis- cretion relieve the purchaser.^^ It has been stated that where title to land under- taken to be conveyed to a city was involved, the comp- 23. Hasbrook v. Paddock, 1 Barb. 635. 24. Noble v. Cromwell, 26 Barb. 475; Matter of Bull, 45 Barb. 334; Marsh v. Lowry, 26 Barb. 197. The syllabus in the. last named case is misleading, implying that an outsider raised the objection, whereas it was in fact made by the defendant in the action. 25. Lake v. Kessel, 64 A. D. 540. 468 Objections. troller could not raise the question of the regularity of certain action taken by the common council.^" It \s no objection to title that a third party has said that vendee could not get good title.^'^ A plaintiff in foreclosure may not as purchaser ob- ject to a defect for which he is himself responsible — such as the failure to make certain tenants parties de- fendant;^* or a direction in the judgment to sell more land than is necessary to satisfy the mortgage.^^ § 654. When Noticed by the Court. — Judicial opin- I'ons have not clearly announced that the courts will of their own motion take cognizance of defects not ob- jected to by the purchaser; but such practice is estab- lished by several authoritative cases and is probably quite common at special term. It is entirely in accord with equity and with the liberal judicial attitude to- ward marketability of title. In Lyon v. Lyon, 67 N. Y. 250, the purchaser in fore- closure moved upon "all the pleadings and proceed- ings" to be relieved, expressing his doubt "whether the mortgage * * * is a valid and subsisting lien." The court of appeals held that the mortgage was valid, but that certain judgment creditors were not cut off, and affirmed an order granting relief. The issue is more openly met in Frain v. Klein, 18 A. D. 64, an action by vendor for specific performance. Vendee defended wholly on the ground of misrepre- sentation of fact, but it developed upon the trial that the premises were subject to an assessment. The trial court gave judgment for plaintiff. Upon appeal the appellate division held that altho defendant had 26. People ex rel. Taylor v. Brennan, 39 Barb. 522. Whether this represents as much law as polities may well be doubted. 27. Northrup v. Gibbs, 28 W. D. 505. 28. Ostrom v. McCann, 21 How. Pr. 431. 29. Andrews v. O'Mahoney, 112 N. Y. 567. .Waivee. . 469 not so requested at the trial, he should be protected from the assessment, and modified the judgment to provide for discharge of same. A majority of the court in McKenna v. Duffy, 64 Hun, 597, concur in the proposition that a serious irreg- ularity in a partition judgment, tho not objected to by the purchaser, should be noticed by the court. § 655. Waiver. — Failure to object on or before the closing date to purely technical defects is a waiver thereof. An objection solely on other grounds waives the defect in the form of a release of mortgage;^" also of a deed containing covenant for quiet enjoyment only instead of full covenants and warranty as agreed.*^ The failure to file a satisfaction of mortgage is such technical defect,^^ as is the failure to file and enter an order granting a religious corporation leave to sell.^* So of failure to cancel tax sales after obtaining the certificates thereon;^* or to discharge a small tax;^^ or to obtain a release of trifling encumbrances.^^ What conduct amounts to a waiver is a question of fact. Eefusal to complete after several adjournments coupled with the statement before closing day that vendee had no objection to a Brundage clause in a mortgage was held to be a waiver thereof in spite of formal objection interposed- on the closing day.*' When vendor offered to produce satisfaction of mort- 30. Weinheimer v. Eoss, 205 N. Y. 518. 31. Carman v. Pultz, 21 N. Y. 547; Bigler v. Morgan, 77 N. Y. 312. 32. Mcklas v. Keller, 9 A. D. 216; Forsyth v. Leslie, 74 A. D. 517. 33. Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. Pr. N. S. 484. 34. Hun -v. Bourdon, 57 A. D. 351. 35. Cogswell V. Boehm, 5 Supp. 67. 36. Winne v. Reynolds, 6 Paige, 407. 37. Webster Realty Co. v. Gerarty, 202 N. Y. 530. 470 Objections. gage on demand and vendee made no demand, he was held to have waived the defect.^^ The vendee's re- mark that if the tenants were good he would like them to stay was held to be mere loose talk, not amounting to waiver of tenancies.^^ There is no waiver in failing to object to a defect which cannot be cured,*" even tho vendee at first makes several untenable objections and finally refuses to complete without assigning any reason,*^ or permits vendor to incur expense in the effort to cure the defect first objected to.*^ But altho the defect is incurable, vendee may show by taking adjournments after knowl- edge thereof, by modifying the contract and by adver- tising the premises for sale as owner, that he does not regard the defect as material.*^ He may also in equity be held to. his statement on the closing day that he would adjust two certain ob- jections by a deduction from the price if it were not for a third which he considered fatal. The court, hav- ing found that the third defect had been cured, de- creed specific performance with allowance.** Where the objections are inconsistent and no evi- 38. Cogswell V. Boehm, 5 Supp. 67. 39. Guli V. West, 65 Hun, 1. 40. Mutchniek v. Davis, 130 A. D. 417; Whalen v. Stuart, 123 A. D. 446, rvsd. on other grounds, 194 N. Y. 495. 41. Pierce v. Tuttle, 57 N. Y. 636. 42. Thornton Brothers Co. v. Tully Construction Co., 160 A. D. 171. Vendor by quitclaims cured the first defect about a fortnight after the adjourned date. 43. Urbach v. Pye, 124 A. D. 587, rvsg. 55 Misc. 465. It is upon this ground that it seems best to rest the rather obscure ease of Guynet v. Mantel, 4 Duer, 86, stating that the exercises of acts of ownership after knowledge of encumbrance is a waiver. 44. Weintraub v. Siegel, 133 A. D. 677, rvsg. 57 'Misc. 246. This is clearly not a waiver, as it is carelessly called in the opinion. OuEABLB Defects. 471 dence is produced in support of either, one may be waived by a pleading setting forth, the other. A ven- dee objected that creditors' claims against vendor's ancestor J B had not been barred and also that J B's will had not been probated. On suing for his deposit vendee pleaded that J B had died intestate. Such allegation was held to waive the probate objection.*^ A vendee taking possession waives the search to which under his contract he was entitled and he also waives slight defects of which he had knowledge; but he does not except upon conclusive evidence of intent so to do waive defects of a character necessarily to lessen the value of the property.*^ Such vendee waives rights based on the failure to tender a deed correct in form.*^ § 656. Curable Defects.— When the defect tho sub- stantial is curable, vendee may »not in equity demand strict fulfillment of the contract if he has not given timely notice of objection to such defect. He is often said rather loosely to have waived it; but the result usually is that equity gives the vendor an opportunity to perfect his title. When vendee sues at law he is held strictly to all formal requirements.*^ Various defects fall within this category; and the courts assume without much evidence that the vendor could in fact have removed same. The following are examples : — Brundage clause in a mortgage ;*" interests outstanding because of unrecorded instrument;'^'' in- 45. Moser v. Cochrane, 107 N. Y. 35, affg. 13 Daly, 159, ap- proving 12 Daly, 292. 46. Coray v. Matthewson, 7 Lans. 80. 47. Tompkins v. Hyatt, 28 N. Y. 347, rvsg. 29 Barb. 212. 48. Rosenberg v. Jacobson, 56 Misc. 693; Higgins v. Eagle- ton, 155 N. Y. 466. 49. Rosenberg v. Jacobson, 56 Misc. 693 ; , Rosenberg v. Feier- ing, 121 A. D. 190. 50. State Bank v. Wilchinsky, 197 N. Y. 578. 472 Objections. definiteness of boundary lines ;^^ beam rights ;^^ tax liens and sales.^^ The authority of Morange v. Morris, 34 Barb. 311^ affd. 32 How. Pr. 178, holding that objection on an un- tenable ground was no waiver of a tax lien of |1600 aud excused vendee from tender before suing at law, may be doubted. That case has been expressly over- ruled on another point, and appears to be discredited on this point by Higgins v. Eagleton, 155 N. Y. 466, laying down the rule as follows : — "Plaintiff, on the law day, having made specific objections to the title, which were unfounded, could not subsequently raise a new objection, even if it was valid, where, as in this case, it was one that could have been obviated by the de- fendant." Vendee's taking possession is not such a waiver of judgments and assessments as to enable vendor to sue at law without discharging the encumbrances.^* § 657. Evidence.— The fact that the record of title does not fill every possible gap raises no presumption that title is defective. A purchaser whose objection is based upon such negative condition should show some reason to believe that a colorable claim is outstand- ing.^^ A judicial sale of ' ' right, title and interest ' ' will in the absence of proof of defect convey marketable title.5« When yendee's doubt is based upon the facts, he should show some reason to believe that his version 51. Eeynolds v. White, 134 A. D. 248. 52. Higgins v. Eagleton, 155 N. Y. 466, rvsg. 13 Misc. 223. 53. Langdon v. Schiflf, 120 A. D. 888, affd. 189 N. Y. 548, with- out opinion. 54. Towle V. Jones, 1 Robt. 87. 55. Greenblatt v. Hermann, 144 N. Y. 13. 56. Matter of Dolan, 88 N. Y. 309, a%. 2 Dem. 611 n, rvsg. 26 Hun, 46. Evidence. 473^ is correct. Under the chancery practice an affidavit that purchaser believed such facts to exist raised an issue.^'' When the record shows an apparent defect and ven- dor contends that it is immaterial or curable, it cer- tainly seems proper to impose upon him the duty of demonstrating that theory; and it has been so held in a recent case.^® In an old case it was, however, de- cided that two mortgages open of record were no de- fense to vendee's refusal to complete as against ven- dor's word on the closing day that they were ineffec- tive because they had never been accepted.^' The application of the foregoing rules is illustrated by the following cases: — ^A partition sale by the heirs is not premature because time to prove a will and for creditors to bring proceedings for sale of the real estate has not expired, in the absence of facts tending to show the existence of a will or of debts.®" Entire absence of evidence as to the heirs of a former owner against whom adverse possession is claimed raises no prob- ability of an escheat.®^ The fact that a woman ten years after acquiring title conveyed by a different sur- name does not support the inference that she has twenty-six years later left surviving her a widower with an estate of curtesy.®^ The owner of the lease, within a month after assigning same to defendant for " one dollar and other valuable consideration," made an assignment for benefit of creditors; this fact raises no such suspicion of probable attack by a creditor as to impair defendant's title upon an immediate resale to 57. Spring v. Sandford, 7 Paige, 550. ' 58. Elterman v. Hyman, 141 A. D. 208. 59. Wilsey v. Dennis, 44 Barb. 354. 60. Spring v. Sandford, 7 Paige, 550. ' 61. New York Steam Co. v. Stern, 46 Hun, 206. 62. Matter of Bellesheim. 17 S. E. 10. 474 Objections. plaintiff."^ Failure in judicial proceedings to make tenants parties does not impair title unless it appears that such tenants were in possession after tender of deed.®* A vendee alleging that a deed in the chain was intended as a mortgage must support his claim with clear proof.®' An allegation in a petition in ad- ministrator's proceedings to sell for debts that de- cedent's heirs are certain persons named, will in the absence of evidence to the cohtrary be construed to mean all such heirs.®" Vendee states no objection to title by suggesting the possibility that a religious so- ciety whose income was limited to |25,000 may have exceeded such income by accepting the premises in question.®^ An open lis pendens of itself throws no doubt upon title.®^ An open mortgage over thirty years overdue is proper basis for inquiry, for the mortgagor may have done something to keep it alive.®^ § 658. Knowledge. — That the purchaser has knowl- edge of facts which might make title doubtful does not preclude him from objecting to its unmarketability upon other grounds of which he was ignorant at the time of entering into his contract.'^" An agreement not to object upon a certain ground does not preclude vendee from objecting upou an- other.'^^ Objection may be taken to a covenant of record, as 63. Baylis v. Stimson, 110 N. Y. 621, afEg. 53 Super. 225. 64. Ruhe v. Law, 8 Hun, 251. 65. Wilson v. Pearshall, 129 N. Y. 223. 66. Greenblatt v. Hermann, 144 N. Y. 13, rvsg. 69 Hun, 298. 67. Feiner v. Reiss, 98 A. D. 40. 68. Wilsey, v. Dennis, 44 Barb. 354. See also Lis Pendens, § 613. 69. Pangburn v. Miles, 10 Abb. N. C. 42. 70. PHllips V. Wilcox, 12 Misc. 382. 71. Steckler v. Godillot, 17 Misc. 286. Surrogate's Jurisdiction. 475 broader than the contract, where the contract provided that the premises should be free from encumbrances "except existing covenants against nuisances," without specifying the deed containing the covenant in ques- tion.^2 2. Jurisdiction. § 659. Land Outside the State.— The New York courts may entertain an action to enforce specific per- formance Of a contract to purchase or sell land outside the state. If the court acquires jurisdiction by per- sonal service of the defendant, its decree can be made effective through its power over his property within the state, if any, and at any rate over his person. This has been held of the supreme court^ and the court of common pleas.^ § 660. Court of Appeals. — ^An order directing a pur- chaser at judicial sale to complete, or relieving him ' of his bid, is a final order in a special proceeding,' and is reviewable by the court of appeals.^ An order di- recting a defendant to accept a deed as in compliance with a remittitur is not final and not appealable to the court of appeals.* s^ § 661. Surrogate's Court. — When the question first arose whether the surrogate had jurisdiction to relieve from his bid a purchaser at administrator's sale, the surrogate of Westchester Co., comparing the proceed- 72. Levin v. Hill, 117 A. D. 472, affd. 193 N. Y. 621, without opinion. 1. Cleveland v. Burrill, 25 Barb. 532, an extreme case, as both parties resided in New Jersey where the land was situated and the contract made. 2. Myres v. De Mier, 4 Daly, 343, affd. 52 N. Y. 647. 3. Merges v. Ringler, 158 N. Y. 701; Parish v. Parish, 175 N. Y. 181, rvsg. 77 A. D. 181. 4. Roome v. PhUlips, 27 N. Y. 357. 476 Jurisdiction. ing to an action of specific performance, decided that he had no authority to act.^ But on appeal the general term of the supreme court took the common sense view that such power was incidental to the statutory author- ity to direct the disposition of real estate," and the question was not again raised until the revision of 1904. That statute ^ has been construed as depriving the surrogate of the power of confirming the sale and of directing various interlocutory proceedings, and con- sequently of passing upon the title.* §'662. Inferior Courts. — Whether an action by a vendee to recover damages for vendor's failure to con- vey marketable title was within the jurisdiction of a court which had no authority to try title to real estate has frequently been raised and always answered in the affirmative. § 663. City Court. — In the city court it was held that the limitation had been abolished by statute in 1875® and never reinstated, and that since then juris- diction in common law actions was neither divested nor impaired by the fact that title to real property was presented for adjudication.^" § 664. Municipal Court. — In regard to the municipal court the statutory limitation is not questioned, yet jurisdiction is sustained. It has been said in such an action that " there is no title in dispute " — that it was merely the question of an encumbrance preventing 5. Wolfe V. Lynch, 2 Dem. 610. 6. Matter of Lynch, 33 Hun, 309. 7. Laws of 1904, chap. 750; Code, ^ 2749-2801a. 8. Matter -of Bridgeport Brass Co., 77 Misc. 69, affd. 155 A. D. 910. 9. Laws of 1875, c. 479. 10. McCrea v. Jacobs, 19 Abb. N. C. 188. Relief. 477 vendor from giving possession.^^ Finally in a case where the objection was not on the ground of encum- brance the difi&culty was squarely met and the deci- sion reached that title was not in issue — that market- ability was not actual title, such for instance as to affect the right of possession, and hence not within the statute.^^ In a somewhat metaphysical sense, as pointed out in the Introduction, this is so, and it is fortunate that the courts have finally adopted this view. § 665. Justice of the Peace. — The same result was reached many years earlier in regard to justices of the peace.^^ § 666. Court of Claims. — The court of claims being statutory has only statutory authority which does not include adjudication of marketability. It may deter- mine the value of a marketable title, but not whether any given title is marketable.^* 3. Relief. § 667. In this subdivision and the next are grouped the cases which discuss the rights and remedies of owners, buyers and sellers of real estate in litigation arising out of questions of marketability. The cases cited herein relate more particularly to the problem whether the interested party can have any relief at all, while those cited in the next subdivision relate more particularly to the form of relief that may be had. But the two groups merge into each other so 11. Elinsky v. Berger, 87 A. D. 584; Heimbinder v. Sullivan, 129 A. D. 589. And see Katz v. Eenig, 32 Misc. 672; Hevia v. Lopardo, 127 A. D. 189. 12. Heiferman v. Scliolder, 134 A. D. 579. 13. Smith V. Eiggs, 2 Duer, 622.^ 14. People ex rel. Smith v. Sohmer, 163 A. D. 830. 478 Relief. ttorouglily that no hard and fast line can be drawn between them, and the assignment of cases is distinctly arbitrary. The two subdivisions should be read to- gether, the second being really a continuation of the first. The parties may by special provision of the contract provide that vendee may recover his deposit even when vendor is not in default, as where performance turned on the procurement of a building loan from a third party. ^ § 668. Law and Equity. — When a party to a broken land contract goes into a court of equity he may de- mand equitable or legal relief in the alternative. The court having jurisdiction will award damages if equit- able relief is impossible.^ That defendant may also invoke the aid of equity, whether plaintiff demands equitable relief or not, has been recently decided by the court of appeals in Wein- heimer v. Eoss, 205 N. Y. 518, rvsg. 140 A. D. 919. And if vendee's action is brought in a court that has no equitable jurisdiction, vendor suing in equity for spe- cific performance, may have vendee 's suit stayed.* But counterclaiming for specific performance he waives his right to trial at special term by noticing the case for trial before a jury.* The court will of its own motion protect a vendee who has failed to plead an encum- brance or to ask relief on the trial; it will not grant specific performance to the vendor except on, condition of his removing such encumbrance.^ 1. Brody, Adler & Koch C. v. Hoehstadter, 160 A. D. 310. 2. Barlow v. Scott, 24 N. Y, 40; Elterman v. Hyman, 141, A. D. 208; Snow v. Monk, 81 A. D. 206; McCarten v. Smitli, 163 A. D. 900. 3. Corn v. Suderov, 160 A. D. 916. 4. Groden v. Jacobson, 129 A. D. 508. 5. Frain v. Klein, 18 A. D. 64. Law and Equity. ' 479 The defense of unmarketability may be set up in an action at law for the price.* Where vendee sues in equity claiming specific performance or damages and vendor concedes the defect, he sTiould plead that plain- tiff has an adequate remedy at law; otherwise the case will be tried in equity and tried on its merits, and ven- dee may be enabled to keep the premises tied up with a lis pendens as a lever unfairly to force concessions from vendor. '^ If it is made to appear that plaintiff is not entitled to equitable relief, the complaint will not be dismissed, but the case will be set for jury trial.® § 669. Good Faith. — Where vendor does not attempt in good faith to perform on closing he should be re- quired to perform in the action or pay compensatory damages.® A vendee seeking equitable relief must also show good faith. ^" It is only culpable conduct on vendor's part that would justify a decree requiring him to convey after termina- ,tion of a pending ejectment suit; unless such conduct is proved, vendee should recover merely deposit and expenses. ^^ Where vendee's objections, while not sustained for lack of proof, were held "not wanton or frivolous," and both parties asked for specific performance, it was de- creed that on payment of all costs plaintiff might have a new trial. ^^ Where vendor was wrongly advised on an obscure 6. Reynolds v. Strong, 82 Hun, 202. 7. Snow V. Monk, 81 A. D. 206; Stuyvesant v. "Weil, 26 Misc. 445; Messenger v. Chambers, 53 Misc. 117. 8. Messenger y. Chambers, 53 Misc. 117. 9. Schreiber v. Elkin, 118 A. D. 244. 10. Eyder v. Coburn, 47 A. D. 182.- 11. Rosenberg v. Haggerty, 189 N. T. 481, rvsg. 114 A. D. 920. 12. Greenblatt v. Hermann, 144 N. Y. 13, rvsg. 69 Hun, 298. 480 Relief, question of law and as a result finds his premises sub- ject to a much greater lien than he had supposed, it ■would be inequitable under a contract to sell free from encumbrances to enforce specific performance.^* § 670. Owner. — The owner of premises may apply in an action through which his title is derived for the cor- rection of an irregularity. The parties to such action, as for instance foreclosure, cannot object to the amend- ment of the decree therein so as to direct sale by the sheriff, who actually made same, instead of the referee originally designated.^* On the same theory it would follow that the amendment sought in Wallace v. Naugh- ton, 23 Supp. 809 n, should have been allowed; for it is established by weight of authority that where the facts alleged in a foreclosure complaint justify a decree cutting off the owner's equity of redemption, such de- cree may be entered although by mistake the complaint demands only the foreclosing of the other defendants.^^ The court, however, took the view that the owner of the equity was entitled to be heard. In such case the proper course is to reopen the proceedings, as was per- mitted in Matter of Valentine, 72 N. Y. 184, rvsg. 10 Hun, 83, where a lunatic's proceeding had been conducted without a reference — a defect so substantial as to in- validate the sale. IJpon stipulating to bid the same price as before, the purchaser was allowed to perfect the " proceedings at the expense of the original peti- tioner. Where the purchaser afterwards bought the undi- vided share of a claimant unknown at the time of the infants' proceedings, he was allowed to reopen such proceedings, prove the true condition of the title and 13. Eiseman v. Josephthal, 71 Misc. 288. 14. Hogan v. Hoyt, 37 N. Y. 300. 15. Brenen v. North, 7 A. D. 79; Mygatt v. Somerville, 23 Supp. 808. Owner. 481 obtain a refund out of the proceeds of sale still under the control of the court.^'' After sale in an infants' proceeding, the question was raised whether the infants' cross remainders, several of which had vested, had been conveyed. As the parties were all before the court in a foreclosure action, the chancellor decreed that the surviving infants (now of age), in order to transmit the title which the court had intended, release said remainders to the purchaser and covenant to release the other remainders on inherit- ing the same.^'' § 671. Caveat Emptor. — A purchaser who takes title without examination comes under the rule of caveat em'ptor}^ In the absence of fraud or mistake, vendee takes title at his own risk ; when he has accepted a deed, though without the covenants he was entitled to, he may not complain of the existence of an encumbrance.^^ Where vendee, an Italian who could not read or write English, having contracted for premises free and clear, accepted a warranty deed with covenant for quiet en- joyment while the premises were subject to an assess- ment of which he was ignorant, it was held that natural justice required that he should have relief. The deed was accordingly reformed to conform to the contract and plaintiff awarded the amount of the assessment which he had paid.^° After accepting an improperly acknowledged deed, vendee was allowed to invoke the aid of equity to secure 16. Matter of Price, 67 N. Y. 231, affg. 6 Hun, 513. 17. Davison v. DeFreest, 3 Sand. Ch. 456. 18. GriflSth v. Kempshall, Clarke, 571. But where there is actual fraud he may have relief. See § 599. 19. Whittemore v. Tarrington, 76 N. Y. 452, afifg. 12 Hun, 349. 20. Di Chiro V. 'Byrne, 163 A. D. 109. 31 482 Relief. from vendor a deed sufficient in form to comply with the Eecording Act.^^ § 672. Vendee. — In the great majority of cases where vendee is plaintiff or where as defendant he sets up an affirmative defense, he like vendor either sues at law for damages or in equity claims specific performance. Those cases are discussed separately. A variety of sit- uations are, however, peculiar to a vendee; and these are collected below. § 673. Mortgage. — Unmarketahility of title is no de- fense to foreclosure of a purchase money mortgage.^^ This rule is so well established that an answer setting up defect of title has been declared frivolous.^* Where however there has been actual eviction, mortgagor may plead same;^* and the pendency of an ejectment suit has been held sufficient, to require a stay of the fore closure.^" In such case also the mortgagee may not recover judgment for deficiency.^® The same general rule has been extended to other mortgages upon the ground that the mortgagor assents to the title by making the mortgage, and as against him it must be held sufficients^ The purchaser will acquire whatever mortgagor had.^^ The action is inappropriate 21. Leavitt v. Thornton, 123 A. D. 683. 22. Bumpus v. Platner, 1 Johns. Ch. 213 {dictum) ; Abbott v. Allen, 2 Johns. Ch. 519; Gouverneur v. Elmendorf, 5 Johns. Ch. 79; Leggett v. M'Carty, 3 Edw. 124; Griffith v. Kempshall, Clarke, 571; Woodruff v. Bunce, 9 Paige, 443; Banks v. Walker, 2 Sand. Ch. 344, affd. 3 Barb. Ch. 348; Davison v. De Freest, 3 Sand. Ch. 456; Shire v. Plimpton, 50 A. D. 117; Meserole v. Williams, 153 A. D. 306; Kouwenhoven v. Gifford, 143 A. D. 913. 23. Seidman v. Gieb, 19 Civ. Proc. 359. 24. Withers v. Codwise, 2 Sand. Ch. 350 n. 25. Johnson v. Gere, 2 John. Ch. 546. 26. Withers v. Morrell, 3 Edw. 560. 27. Mead v. Brunnemer, 6 S. R. 38. 28. Dime Savings Bank v. Crook, 29 Hun, 671. Refekee. 483 for settling disputes over title; and mortgagor is in no position to demand a resale because of such disputes.^* § 674. Bond and Note. — In an action on a bond given in part consideration for real estate it is no defense that vendor's title was defective.^** And the same rule has been applied to a promissory note.^^ § 675. Possession. — A vendee in possession waives his right to a strict technical performance by vendor, and. must accept title with adequate provision for protection, against encumbrances^^ or deduction for same.^^ He waives time limits'* and slight defects ;^^ and where the defect is substantial his attempt to rescind the con- tract must at least be accompanied by surrender of possession.^* A vendee in possession cannot dispute vendor's title or refuse to perform on the ground that such title is defective. He is liable to be ejected if he remains in possession while arguing the title.^' His possession is not adverse. ^^ § 676. Referee. — A referee in foreclosure is entitled to his fee for a sale not completed because of defect in title, but he may not recover it on summary application. He must sue for it.'® 29. Same; Bodine v. Edwards, 3 Ch. Sen. 46. 30. Tallmadge v. Wallis, 25 Wend. 107. 31. Squires v. Peck, 14 W. D. 564. 32. Guynet v. Mantel, 4 Duer, 86. 33. McNair v. Newey, 23 W. D. 249. 34. Kent v. Church of St. Michael, 136 N. Y. 10; Tompkins V. Hyatt, 28 N. Y. 347, rvsg. 29 Barb. 212. 35. Coray v. Mathewson, 7 Lans. 80. 36. Lewis v. McMillen, 41 Barb. 420, overruling 31 Barb. 395. 37. Pierce v. Tuttle, 53 Barb. 155. 38. Rhoades v. Freeman, 9 A. D. 20. 39. Hover v. Hover, 25 Misc. 95. 484 Belief. A referee in foreclosure was delayed by defendant several months in closing, during which interval cur- rent ta:?:es were confirmed. He moved to compel de- fendant to pay such taxes, but his motion was denied. Upon his accounting, however, he was not allowed to deduct the amount retained by defendant. He there- upon brought suit for said amount so withheld. The court held that he had no individual cause of action, adding obiter that he should apply again for relief in the foreclosure suit.*" § 677. Fiduciary. — A fiduciary who is unable to con- vey the premises he has contracted to sell, because his beneficiaries refuse to execute the necessary instruments, is personally liable to the vendee, whether he signed "as" fiduciary,*^ or not.*^ He is also liable in his representa- tive capacity for repayment of vendee's deposit, but not for expenses of examination.** Where the premises were actually conveyed but sub- sequently a lien, unknown at the time was discovered, the estate was held liable.** II § 678. Mutual Mistake. — Where the parties both supposed a tax title to be good but it proved totally void, vendee should recover the consideration paid.*^ So where there is mutual mistake in overestimating the area sold, vendor should make a proportionate allow- 40. Crane v. Robinson, 19 Misc. 40. 41. Carr v. Dooley, 19 Misc. 553. 42. Brinekerhoff v. Phelps, 24 Barb. 100, approved 40 N. Y. 59; Elliott v. Asiel, 120 A. D. 829. 43. Scheibeler v. Albee, 114 A. D. 146; MeCormick v. Tyler, 215 N. Y. 628, affg. 164 A. D. 886. 44. Alexander v. Greacen, 36 Misc. 526, rvsg. 36 Misc. 133. 45. Granger v. Oleott, 1 Lans. 169. 46. Voorhees v. DeMeyer, 3 Sand. Ch. 614, affd. on other grounds 2 Barb. 37. Time. 485 § 679. Time. — Of the Essence. — Time may be made of the essence by the terms of the contract, as — "This contract is made on condition that M shall receive title Oct. 10, 1902, and if he fails to receive title by that date, this contract shall become null and void."*^ In the absence of such provision time is prima facie not of the essence.*^ But in an action at law, where neither side invokes the aid of equity, the parties are held strictly to the terms of their contract.** Time may also be made of the essence by circum- stances, as where a party has to get himself a new resi- dence and care for perishable property ;'" or where ven- dee to vendor's knc^wledge intends to build immedi- ately;^^ or where vendee has by the collapse of a real estate boom lost a chance to resell at a proflt.^^ And finally time may be made of the essence by no- tice given by one party to the other to perform on a certain date.^^ Such notice must be definite;^* and in order to affect a complete written contract, must be in writing.^^ It may be inferred from Oppenheimer v. Humphreys, 9 Supp. 840, affd. 125 N. Y. 733, on opinion below, that a second adjournment to a fixed date is sufficient in 47. Baldwin v. McGrath, 90 A. D. 199, rvsg. 41 Misc. 39, approved 188 N. Y. 606, without opinion; Grillenberger v. Spencer, 7 Misc. 601. 48. Myres v. DeMier, 4 Daly, 343, affd. 52 N. Y. 647; Higgins V. Eagleton, 155 N. Y. 466; Northrup v. Gibbs, 28 W. D. 505. 49. Groden v. Jacobson, 129 A. D. 508; Weil v. Radley, 31 A. D. 25, affd. 163 N. Y. 582, without opinion. 50. Gale v. Archer, 42 Barb. 320. 51. Garret v. Cohen, 63 Misc. 450. 52. Spaulding v. Fierle, 86 Hun, 17, affd. 155 N. Y. 676, on opinion below. 53. Darrow v. Cornell, 30 A. D. 115; Zorn v. McParland, 11 Misc. 555, affg. 8 Misc. 126, affd. 155 N. Y. 684, without opin- ion; Schmidt V. Reed, 132 N. Y. 108, affg. 58 Super. 570. 54. Foland v. Italian Savings Bank, 123 A. D. 598. 55. Lese v. Lamprecht, 196 N. Y. 32, rvsg. 123 A. D. 919. 486 Relief. itself to make time of the essence; for there is nothing else either in the contract or in the evidence to accom- plish that result. When time is of the essence the parties are bound to perform on the stipulated day and neither is obliged to grant the other any extension.^® The provision that time shall be of the essence may be waived, as by asking for an adjournment;^'^ or by accepting partial performance;^* but it has also been held that vendee's willingness to wait a few days does not bind him forever or put him at vendor's mercy as to date of closing.^* § 680. Judicial Sale. — It was implied in an early case that the purchaser at judicial sale was absolutely en- titled to receive his deed on the closing date;^" but no such strict rule now prevails or has ever been enforced.. In a carefully considered case it was later held by the court of appeals that vendee is relieved only by unrea- sonable and unexcused delay on vendor 's part ; or by a delay that is satisfactorily proved to the court to have resulted in detriment to vendee because of an interme- diate and material change of circumstances."^ A delay of 18 days resulting in a probable loss of tenancy for one year was held unreasonable.*^ A delay of three months was pronounced so unrea- 56. Baldwin v. McGrath, 90 A. D. 199; and other cases above cited. 57. Grillenberger v. Spencer, 7 Misc. 601. 58. Myres v. DeMier, 4 Daly, 343. 59. Garrett v. Cohen, 63 Misc. 450. Vendee agreed to an ad- journment of 23 days, at the end of which time he announced that the deal was ofif. Vendor's tender 21 days later was held inef- fectual. On the facts this case is hardly reconcilable with the weight of authority above cited. 60. Jackson v. Edwards, 22 Wend. 498, affg. 7 Paige, 386. 61. Merchants' Bank v. Thomson, 55 N. Y. 7. 62. Darrow v. Horton, 6 S. R. 718. ; Time. 487 sonable, even in the absence of protest by vendee, as to excuse Mm without proof of injury;^* so of ten months' delay.®* Where the delay was merely a temporary interfer- ence with possession, inflicted by a third person without claini of right, it was compensated by an allowance of 3% to vendee on the balance of the purchase price.®^ Vendee may by demand make time of the essence.®* § 681. Vendee's Rights. — When time is not of the essence, the rights of both vendor and vendee are deter- mined largely by equity and common sense. The vendee who upon the closing date finds an apparent encum- brance, may have a reasonable time to investigate same.®'' It is a reasonable precaution for him to examine title, and where in spite of diligent effort from contract to closing date he has been unable to complete his exam- ination, vendor's refusal of an adjournment is harsh and unreasonable; if no damage to vendor appears, the delay should be excused and a demand three weeks later should be enforced.®® When an actual encumbrance exists, vendee is not obliged to perform until its removal. The pendency of an action against vendor for specific performance is such encumbrance and it is not removed until the time for the unsuccessful plaintiff therein to appeal has ex- pired.®* Under such circumstances it is not material 63. Riee v. Barrett, 99 N. T. 403, rvsg. 35 Hun, 366. 64. Jackson v. Edwards, 22 Wend. 498. 65. Meinell v. Meinell, 110 A. D. 891. 66. Remsen v. Reese, 72 Hun, 370. 67. Jencks v. Kearney, 17 Supp. 143 (dictum). 68. Willis V. Dawson, 34 Hun, 492. 69. Bend v. Ruekman, 17 W. D. 153. This was an action at law not brought until seven years after closing date, but the statute of limitations was not pleaded. See also opionion at special term. Whalen v. Stuart, 123 A. D. 446, rvsd. 194 N. Y. 495, on other grounds. 488 Belief. that vendee fails to make a tender on closing day and waits a month''*' or five weeks''^ before demanding per- formance. Vendee must however make his demand within a rea- sonable period after closing date. A delay of three and one half years is prima facie too great, even without proof of injury to vendor ;^^ still more so five years' delay ;''^ and 17 years' delay where the property has increased ten fold in value and numerous claims have vested in if* § 682. Vendor's Rights. — When time is not of the essence vendor must have a reasonable opportunity to complete his obligations. A delay of two days in ten- dering a proper deed is not fatal ;''^ nor is nine days' delay.''* Even a delay of a year or more may not be material. '"^ In view of these cases, the doubt expressed in Hugel V. Habel, 132 A. D. 327, rvsg. 56 Misc. 402, over four months' delay without claim of injury by vendee seems unjustified. But seven years is such extreme laches as to require a court of equity to refuse to lend its aid.''^ ' 70. Jerome v. Seudder, 2 Robt. 169. 71. McCool V. Jacobus, 7 Robt. 115. 72. Delavan y. Duncan, 49 N. Y. 485. On the second trial plaintiff's recording of the contract was held to relieve him of the charge of laches. 4 Hun, 29. 73. Jencks v. Kearney, 17 Supp. 143. 74. Peters v. Delaplaine, 49 N. Y. 362. In this case the right of action was said to have accrued on the closing date and to have been outlawed in ten years. 75. Mayer v. MeCune, 59 How. Pr. 78 (dictum). 76. Hun V. Bourdon, 57 A. D. 351; Higgins v Eagleton, 155 N. Y. 466. 77. Schroeppel v. Hopper, 40 Barb. 425, one year; Grillenberger V. Spencer, 7 Misc. 601, two years. 78. Begen v. Pettus, 144 A. D. 476; and see Parisen v. Parisen, 1 T. & C. 642, eight years; Tompkins v. Seely, 29 Barb. 212, ten Abatement of Consideration. 489 A referee cannot set up a defense of laches against a vendor who is slow in demanding that such referee dis- charge the liens on the premises.''^ § 683. Abatement of Consideration. — There is per- haps no topic in the law of marketability on which the cases are in such unsatisfactory condition as they are upon the following question: — When vendor's title is slightly defective, what relief can be granted? Not only is there a most unusual absence of convincing argument in the opinions, but in addition there is a superabund- ance of oMter dicta and an unfortunate admixture of perplexing unreported cases. By considering the cases first from the point of view of the vendor and then from vendee's viewpoint the con- fusion is reduced to a minimum. § 684. Vendor's Demand. — In the cases where ven- dor is plaintiff the law may be considered as established with reasonable certainty. These cases have from the very beginning held that certain defects might be com- pensated by an abatement from the purchase price; and the difficult question is to determine how serious such, compensable defects may be. "Specific performance may be decreed ,if the com- plainant is able to perform his agreement in substance, although there is a trifiing variation in the description of the property, or a trifling encumbrance on the title, which cannot be removed, but which may be the subject of compensation."^** years; Voorhees v. De Meyer, 2 Barb. 37, affg. 3 Sand. Ch. 614, twenty-three years. 79. Weseman v. Wingrove, 85 N. Y. 353, affg. 9 W. D. 434. 80. Winne v. Reynolds, 6 Paige, 407, holding the reservations of a Van Eensselaer lease wholly nominal ; King v. Bardeau, 6 Johns. Ch. 38, building encroaching 20 inches over middle line of two lots sold as single parcel; Uebelaeker v. TJebelacker, 112 Supp. 527, 490 Relief. A more cautious and perhaps more accurate rule is laid down in Beyer v. Marks, 2 Sweeny, 715, as fol- lows : The purchaser is entitled to receive a good, valid and unencumbered title to substantially what he con- tracted for; in case of slight deficiency, of a character that can be compensated in damages, he will be required to take on receiving such compensation, provided the court concludes that he would not have declined the contract originally had he known of such defect. A known defect cannot form the basis of a refusal to accept title, but it may justify an allowance to vendee, as where vendor has conveyed out of the premises a small parcel previously under contract of sale.®^ Whether the dicta in the following cases really en- large the rule as quoted above from Beyer v. Marks is a matter of grave doubt : "The title being free from rea- sonable doubt {sic) it was proper for the court to allow compensation for the material defects which appeared, and to appoint a referee to determine the amount which should be awarded." Merges v. Ringler, 34 A. D. 415, atfg. 24 Misc. 317, afPd. 158 N. Y. 701, on opinion below. An error in area, whereby a lot sold as 50'9" by 80' measures only 45'3" by 79'6", will be compensated by deduction from the price. Jennings v. Jennings, 2 Abb. Pr. 6. On making compensation for the removal of partitions and plumbing plaintiff could probably have recovered in equity. Smyth v. Sturges, 108 N. Y. 495, affg. 30 Hun, 89, denying relief in an action at law. In what seems to be the only case of this class where deficiency in rear valued at $25 on $9,000 purchase; Weintraub V. Siegel, 133 A. D. 677, rvsg. 57 Misc. 246, slight enchroachment on rear not valued, and fire escape violation costing $150 to rem- edy; Kelly V. Brower, 7 Supp. 752, affd. 132 N. Y. 539, on other grounds, encroachment covering $70 worth of ground on $4500 purchase; Frain v. Klein, 18 A. D. 64, assessment of $300 on $5900 purchase. 81. Vedder v. Evertson, 3 Paige, 281. Abatement of Consideration. 491 the defect actually was material and unliquidated, and the attempt was made to force upon vendee the title to the balance of the purchase with compensation for the defective portion, the court of appeals held that that could not be done.^^ ' In Fourth Presbyterian Churcli v. Steiner, 79 Hun, 314, the court went farther and declined to award spe- cific performance (with compensation) of a title subject to a covenant for breach of which, as it held, the owner would be liable for only nominal damages. § 685. Vendee's Demand. — When title is defective vendee has a slightly superior equity, for it is at least not his fault that the contract cannot be literally per- formed. Moreover, he is entitled to favorable con- sideration from the court for the reason that his dam- ages are arbitrarily limited. It would seem, there- fore, that his position as plaintiff ought to be at least as favorable as vendor's, and a little better. Several recent cases render this conclusion more than doubt- ful as a statement of law. There can be no question of the justice of allowing vendee to get what vendor has if vendee is willing to take it, diminished in quantity physically or legally, and pay full price therefor. The early case of Waters V. Travis, 9 Johns. 450, was so decided and has never been disputed. In that case vendor, having conveyed to a third person almost one half of what he had con- tracted to sell to T, contended that T could not be awarded specific performance for the belance. But the court of errors declined to tolerate the idea that a man should by his own act prevent another with whom he had contracted from receiving the benefit of his contract. "The appellant," said the court, "can- not take advantage of his own wrongful acts to dis- 82. Gibert v. Peteler, 38 N. T. 165. 492 Belief. charge himself of a vested right in the respondent. * * * The respondent might insist on having all the land or none, or he may elect to consider the acts of the appellant as his." So vendee may waive an encumbrance stipulated in the contract to be removed.^* A purchaser who at the time of making the contract knows that vendor's actual interest is less than what he agrees to convey will not be permitted to insist upon conveyance thereof with compensation.^* Nor will a purchaser be granted specific performance for one half with compensation for the rejected half.®^ A common case is where vendor who has contracted to convey free and clear cannot persuade his wife to join. In such case the weight of authority is to the effect that vendee has the option to sue at law for damages or to accept specific performance subject to the inchoate dower which is compensated by his re- taining its computed value out of the purchase price. The method suggested is that such deducted moneys be secured to vendor by a mortgage on the premises payable upon the death of vendor's wife. The cases supporting this view are as follows: Peters v. Dela- plaine, 49 N. Y. 362; Sternberger v. McGovern, 56 N. Y. 12 (opinion only and not decision), rvsg. 4 Daly, 456; Bostwick v. Beach, 103 N. Y. 414; Maas v. Mor- genthaler, 136 A. D. 359; Farley v. Secor, 167 A. D. 80; Stewart v. Gillett, 79 Misc. 93; Mills y. Van Voor- hies, 20 N. Y. 412 (decision only and not opinion), rvsg. 23 Barb. 125. To the opposite effect are: Dixon v. Rice, 16 Hun, 422 ; Martin v. Colby, 42 Hun, 1 ; Bonnet V. Babbage, 19 Supp. 934; Roos v. Lockwood, 59 Hun, 83. Catholic Foreign Mission Soc. v. Oussani, 215 N. Y. 1 (dictum) . 84. Bage v. Millard, 12 Leg. Obs. 57. 85. Eickwort v. Powers, 17 Supp. 137. Abatement of Consideration. 493 181, affd. 129 N. Y. 263, without opinion; Mills v. Van Voorhies, supra (opinion only and not decision). The reasons assigned for not allowing such relief to vendee are (1) that the allowance is uncertain; (2) that the fluctuating value of real estate in this country makes it inequitable to give such an option; (3) that it ties up the title for an indefinite period; (4) that it is harsh. In answer it may be said (1) that it is a common practice to estimate by mortality tables the value of interests in land dependent upon lives; (2) that if vendee is required to make his election promptly, no such violent fluctuation in price is likely to occur as to make it inequitable to carry it out — for after all he may guess wrong; (3) that it is for vendee, not vendor or the court, to decide whether he desires a title so encumbered; (4) that it is no harsher than to leave vendee with no other relief than to get his money back. Tf this is the law and the argument where damages are unliquidated, the situation ought to be clearer and more settled in the simpler cases of liquidated damages where, as by deducting the amount of a lien, exact justice can unquestionably be attained. In the early cases that method of procedure was taken for granted : Westervelt v. Matheson, Hoff. 36 ; Voorhees v. be Meyer, 2 Barb. 37, affg. 3 Sand. Ch. 614; Hill v. Kessegieu, 17 Barb. 162 {dictnm) ; Gibert v. Peteler, 38 Barb. 488; Jerome v. Scudder, 2 Robt. 169; Ilarsha V. Reid, 45 N. Y. 415 [dictnm). This seems a respect- able volume of precedent; enough even without the oTjiter cases to justify the conclusion that the law was settled. And it was so referred to in Thompson v. Schmeider, 38 Hun, 504, holding however that the rule did not apply to judicial sales. Nevertheless several recent decisions have thrown the whole subject into inextricable confusion. The appellate division said 494 Relief. in Levy v. Hill, 50 A. D. 294, that granting vendee such relief would be making a new contract; and this decision was followed by the court of appeals in the unreported case of Schlesinger v. Weber, 195 N. Y. 599, where the compensation demanded was 3/40 of the price because of a defective strip along the side.^* After a sale in foreclosure for |8000, an award of |2700 was made for part of the premises taken on con- demnation. Purchaser moved for an equivalent abatement in price, but his motion was denied.^'^ Plaintiff needing the land for a special purpose as defendant knew contracted to buy free and clear. De- fendant tendered a deed subject to four covenants, one of which was a five-foot set back. Plaintiff sued for specific performance with abatement, and on ap- peal from the dismissal of his complaint was held clearly entitled to equitable relief — but what relief the court did not specify.^® § 686. Both Parties' Demand. — It would seem that the most favorable situation for adjusting defects by abatement is when both vendor and vendee demand specific performance. But that view does not seem to have occurred to the courts. In CoflSn v. Lesster, 36 Hun, 347, aifd. 110 N. Y. 645, without opinion, the question of an allowance of 1/80 for a deficiency in the width 6f a city lot was not even argued by vendee, who was the only one to appeal. In a recent case at special term, the judge merely assumed to follow Levy V. Hill, 50 A. D. 294.^8 86. See also elaborate opinion in Leerburger v. Watson, 75 Misc. 3. In Levy v. Hill the damages were not, strictly speaking, liquidated. 87. Bedford v. Fields, 21 Hun, 589. 88. Bolognino v. Shotland, 162 A. D. 679. 89. Leerburger v. Watson, 75 Misc. 3. Specific Pekformance. 495 § 687. Ejccliange. — Where the contract was for ex- change of land, the court declined to decree specific performance with an allowance for inchoate dower or deficiency in width, on the ground that to compel the defaulting party to pay cash would introduce an op- pressive element into the contract."" 4. Remedy. § 688. Specific Performance. — Discretion. — The com- monest remedy sought in marketability cases, especi- ally by an aggrieved vendee, is specific performance. It is convenient, elastic and speedy, and practically includes all that can be obtained by an action at law. The relief granted under a demand for specific per- formance is within the discretion of the court.^ It will not be limited by precise rule. A vendor whose title has become marketable at the date of the decree may be required to convey, although several years have elapsed since the contract date, if he has not been pre- judiced by the delay.^ Specific performance will not be decreed where the court cannot supervise the performance, as survey of foreign real estate f or where it would be oppressive ;* or would work an injustice, as by making vendor pay for a prospective street improvement unexpectedly as- sessed after the contract.® Where a supposed defect in title resulted in the re- 90. Sternberger v. MeGovern, 56 N. Y. 12, rvsg. 4 Daly, 456; Sabriski v. Veloski, 25 Abb. N. C. 185. 1. Haberman v. Baker, 128 N. Y. 253; McPherson v. Sebade, 149 N. Y. 16, affg. 8 Misc. 424. 2. Whalen v. Stuart, 123 A. D. 446, rvsd. on other grounds 194 N. Y. 495; HafiCey v. Lynch, 143 N. Y. 241, rvsg. 68 Hun, 507. 3. Cuban Production Co. v. Rodriguez, 124 A. D. 363. 4. Sternberger v. MeGovern, 56 N. Y. 12, rvsg. 4 Daly, 456. 5. Gotthelf V. Stranahan, 138 N. Y. 345. 496 Eemedy. fusal of a building loan, the vendee was not upon a judgment establishing marketability compelled to com- plete. The inducement of his purchase had largely failed.® § 689. Change of Circumstance. — Where the position of the parties has so changed since the breach that the result of performance would not be substantially what was contemplated by the contract, equity will refuse to intervene. A ten-fold increase in value during the lapse of ten years, with the vesting of claims for main- tenance and improvement, is sufficient to prevent spe- cific performance.''' So is vendee's purchase of other property f or his sale of specified real estate and bonds which were to have been given in part payment.* A party may not, however, excuse himself because of a depreciation due to his own fault. ^° § 690. Mutuality. — It is occasionally said that spe- cific performance is mutual ;^^ and that in the absence of mutuality such remedy will not lie.^^ But the con- trary has been expressly ruled ;^* and is held, though usually without comment, in every case where vendee is given the option to take less than he bargained for. Vendee's assignee cannot in the absence of express novation be compelled to perfonn.^* 6. Brody, Adler & Koch Co. v. Hochstadter, 160 A. D. 310. 7. Peters v. Delaplaine, 49 N. Y. 362. 8. Schmidt v. Reed, 132 N. Y. 108, affg. 58 Super. 570. 9. Maupai v. Jackson, 139 A. D. 524, affg. 64 Misc. 407. 10. Styles V. Blume, 12 Misc. 421, rvsg. 30 Supp. 409. 11. Schroeppel v. Hopper, 40 Barb. 425. 12. Wadick V. Mace, 191 N. Y. 1. 13. Tilton V. Aleott, 16 Barb. 598 {dictum); Catholic Foreign Mission Soc. v. Oussani, 215 N. Y. 1 (dictum). 14. Hugel V. Habel, 132 A. D. 327, rvsg. 56 Misc. 402. Specific Pekfoemanoe. 497 § 691. Viendee. — A vendee asking for specific per- formance must show that there has been no default on his part, for a long unexplained delay is enough to defeat such remedy.^^ But vendor's declaration that the title is encumbered excuses vendee from accepting a deed tendered.^® When vendee is not in default, he may hold vendor to an offer to perform. ^^ He must also show that vendor is in default. Unless the defect is substantial and incurable vendee must make tender and demand upon the closing day; otherwise he will be deemed to have abandoned the contract, and specific performance will be refused him.^^ A demand for more than vendor agreed to convey does not put him in default.^® The express reservation of a right to rescind does not preclude vendee from demanding specific performance f but once having rescinded, vendee may not change and seek to enforce the contract. ^^ A vendee who has rejected marketable title tendered pursuant to the contract may not thereafter maintain specific performance — or any other action against ven- ^Qj, 22 Vendor is not obliged to hold the premises and wait for vendee to change his mind.^' Trivial objections which vendor is able and willing 15. Voorhees v. DeMeyer, 2 Barb. 37, affg. 3 Sand. Ch. 614. 16. Haffey v. Lynch, 143 N. Y. 241, rvsg. 68 Hun, 507. 17. Kahn v. Chapin, 152 N. Y. 305, affg. 84 Hun, 541. 18. Klingenstein v. Alexander, 57 Misc. 236. 19. Hicksville «&e. RR. v. Long Island RR., 48 Barb. 355; Palmer v. Hudson Valley Ry., 134 A. D. 42. 20.' Catholic Foreign Mission Soe. v. Oussani, 215 N. Y. 1 (dictum). 21. Whalen v. Stuart, 194 N. Y. 495, rvsg. 123 A. D. 446. 22. Page v. McDonnell, 55 N. Y. 299, affg. 46 How. Pr. 52 : Boyd V. Seblesinger, 59 N. Y. 301; Styles v. Blume, 12 Misc. 421, rvsg. 30 Supp. 409. 23. Weissberger v. Wallach, 124 A. D. 382, approved 201. N. Y. 590. 32 498 Eemedy. to obviate within a reasonable time give vendee no standing in equity.^* § 692. Vendor. — Specific performance also lies in favor of a vendor whose marketable title is improperly rejected by vendee. Like a vendee plaintiff, vendor must show that he is not in default.^^ A delay of two days in tendering a proper deed, where time is not of the essence, does not deprive vendor of this remedy.^® Nor even a delay of many years where purchaser has been in possession.^^ When time to complete is not definitely fixed, neither party is put in default without demand from the other of what was agreed to be done, and no more.^^ Trivial defects, such as tenement house violations cancelled within a week after the closing date, are no bar to specific performance.^® § 693. Damages. — Although a party asks in his com- plaint for specific performance only, he may amend and recover damages when performance is proved impossi- ble; and this he may do even although he knew of the defect before he brought suit.^" The court may consider all the circumstances and make such decree as to give plaintiff adeqtiate relief. For instance, where defendant had become insolvent 24. Greenspan v. Saladino, 126 A. D. 331. 25. Werner v. Noeth, 161 A. D. 911. 26. Mayer v. MeCune, 59 How. Pr. 78. 27. Tompkins v. Hyatt, 28 N. Y. 347, rvsg. 29 Barb. 212. 28. Palmer v. Hudson Valley Ry., 134 A. D. 42; Northrup v. Gibbs, 28 W. D. 505. 29. Scofleld v. Powers, 215 N. Y. 683. 30. Stemberger v. MeGovern, 56 N. Y. 12, rvsg. 4 Daly, 456; Stevenson v. Spratt, 35 Super. 496; Haffey v. Lynch, 143 N. Y. 241 (dictum), rvsg. 68 Hun, 507; O'Beirne v. Allegheny & Kinzua RR., 151 N. Y. 372, affg. 80 Hun, 570; Lese v. Lawson, 118 A. D. 254. , Judicial Sale. 499 and made an assignment for benefit of creditors, the court directed the premises to be sold subject to the encumbrance objected to and plaintiff's damages to be paid as a lien out of the proceeds.^^ And where inchoate dower was the objection,- a decree was entered directing that the deed be submitted to vendor's wife for signa- ture at her option ; if she refuse, plaintiff to elect within ten days whether to reject the title and recover dam- ages (which should be a lien on the premises) or to accept a deed subject to the encumbrance with an abate- ment in price equivalent to the gross value of same.^^ § 694. Judicial Sale. — Parties to Action. — In every action or proceeding which results in an order or de- cree for sale of real estate the parties thereto have an interest in the correct conduct of the litigation. The offer for sale of a defective title, such as a purchaser would not be compelled to accept, would depreciate the value of the property. Consequently such parties may appeal from a judgment entered upon substantially de- fective procedure.** They may also intervene to pre- vent plaintiff and purchaser from consummating a sale in such manner as to prejudice their interests, even though they took no part in a prior motion under which purchaser was relieved from his bid. They were, for example, allowed to check an assignment of bid and con- veyance to the assignee after such motion.** § 695. Vendee. — The, purchaser at judicial sale is en- titled to have the provisions of the decree and terms of sale carried out. He may move in the action for an order compelling the referee to execute a deed upon payment of the balance due. Where the terms, as is 31. Price v. Palmer, 23 Hun, 504. 32. Maas v. Morgenthaler, 136 A. D. 359. 33. Petes v. Volmer, 28 S. R. 317. 34. Ely v. Matthews, 128 A. D. 513. 500 Remedy. customary, provide for allowance to purchaser of liens paid by him upon production of receipt therefor, the referee still has the duty of discharging all liens known to him. He may be excused from paying unknown liens by purchaser's failure to produce any receipts; but he is not excused from discharging known liens by having paid the consideration over to the parties to the action.^^ The judgment directing the referee to deduct liens pre- vails over terms of sale requiring purchaser to discharge them.^* A vendee whose objection raises doubt about the title should be relieved. It is ordinarily a matter of course for him to make his motion in the action or proceedings in which the sale was ordered and to receive back his deposit and expenses by direction of the court which ordered the sale. It has recently been held, however, that a surrogate can grant no relief to a purchaser at administrator's sale.*^ It is not proper practice to order a reference to deter- mine the rights of possible claimants who might have been made parties to the action but were not, and to keep purchaser waiting indefinitely for a title due him on the closing date.^* Nor should vendee be kept wait- ing until the defects are cured by judicial proceedings.^^ The purchaser himself has no standing to initiate pro- ceedings to bring strangers into the action in order to cure defects.*" Nor can he compel the payment of prior liens to lienors who were not joined in the action and whose liens have not been adjudicated.*^ 35. Easton v. Piekersgill, 55 N. Y. 310. 36. Poughkeepsie Savings Bank v. Winn, 56 How. Pr. 368. 37. Matter of Bridgeport Brass Co., 77 Mise. 69, affd. 155 A. D. 910. 38. Toole V. Toole, 112 N. Y. 333. 39. Ely V. Mathews, 58 Mise. 365. 40. Blanco v. Eoote, 32 Barb. 535. 41. Guggenheimer v. Sayre, 21 S. R. 255; Franklin National Bank v. Lewis, 26 Misc. 75. Judicial Sale. 501 A purchaser, the validity of whose objection is con- ceded by a resale subject to the defect mentioned, is entitled to the return of his deposit in full.*^ If the referee has not sufBcient funds on hand, the plaintiff in the action must make up the deficiency.*^ Purchaser may not have leave to complete upon sub- tracting from his bid an allowance for the defect.** Purchaser will probably be relieved from a bid made under honest misapprehension as to the title offered for sale.*^ One who has unsuccessfully applied for relief must complete as of the date originally fixed for closing.** But the title will not be allowed to relate back to the advantage of a vendee at fault.*'' § 696. Vendor. — The remedy against a purchaser at judicial sale who fails to complete is by motion in the action or proceeding. The purchaser by bidding sub- mits to the. jurisdiction of the court, and even though he fails to sign any memorandum of sale, he may be" compelled by the court to carry out his offer.*^ Such remedy extends to an assignee of the bid who by re- quests to the referee and plaintiff's attorney has so far interfered with the proceedings as to submit himself to the jurisdiction of the court.*® Where a defendant in a specific performance action refuses to comply with the provisions of a judgment 42. Eay v. Adams, 44 A. D. 173, affg. 28 Misc. 664; Eaynor v. Selmes, 52 N. Y. 579. 43. Ridley v. Walter, 153 A. D. 65. 44. Thompson v. Schmeider, 38 Hun, 504, app. disd. 102 N. Y. 504. 45. Franklin National Bank v. Lewis, 26 Misc. 75. 46. Parish v. Parish, 87 A. D. 430; Corbett v. Tleming, 122 Supp. 287. 47. Mitchell v. Bartlett, 51 N. Y. 447, affg. 52 Barb. 319. 48. Andrews v. O'Mahoney, 112 N. Y. 567. 49. Archer v. Archer, 84 Hun, 297, affd. 155 N. Y. 415. 502 Eemedy. directing him to complete, the proper procedure is to have the premises sold at auction under the supervision of a referee, and to convey by referee's deed to the pur- chaser thereat.'" Where the referee without authority announced that a prior mortgage would be paid out of the proceeds, purchaser cannot be required to pay over the amount retained by him to discharge such mortgage; the rem- edy, in the court's discretion, is a resale.^^ A resale is also proper where purchaser without ex- cuse refuses to complete; and where the sale is made upon the same terms, or subject only to defects known to such purchaser at the time of his bid, he will be liable for any deficiency. His deposit may be held to be applied towards such deficiency.^^ The resale must, however, be upon the same terms as the original in order to hold the purchaser; otherwise it is no measure of his liability. ^^ Nor is the mortgagee liable for such loss.^* A purchaser objected to an irregularity which was held insufficient to excuse him. Nevertheless the action was reopened, the irregularity corrected and a resale had. It was held that the original purchaser must pay the expense of the resale, but not of correcting the error.^' Nor can such expense be charged to any per- son who was not a party when the mistake was com- mitted.'^ 50. Strauss v. Bendheim, 162 N. Y. 469, rvsg. 44 A. D. 82; King V. Piatt, 37 N. Y. 155. 51. Hotchkiss v. Clifton Air Cure, 2 Abb. Dec. 406; Guggen- heimer v. Sayre, 21 S. R. 255. 52. Eogers v. James, 25 Hun, 453. 53. Riggs V. Pursell, 74 N. Y. 370; Ray v. Adams, 44 A. D. 173, affg. 28 Misc. 664; Baeeht v. Hevesy, 115 A. D. 509. 54. Riggs V. Boucicault, 20 W. D. 184. 55. Knight v. Moloney, 4 Hun, 33. 56. Raynor v. Selmes, 52 N. Y. 579, rvsg. 7 Lans. 440. Rescission. 503 A wilful or collusive refusal to complete may be pun- ished in contempt proceedings.^^ § 697. Rescission. — Money Had and Received. — No action lies for rescission of contract of Sale, because in case of unmarketable title vendee has a perfect de- fense at law. But an action can be sustained to re- cover the money paid, on the ground of failure of consideration, when vendor's title is not such as ven- dee is bound to take.^^ A recission, strictly speak- ing, treats the contract as at an end. It is not necessary after proof thereof to prove plaintifE's readiness to per- form ; he is entitled to recover his deposit without such proof,^" and without liability under counterclaim for non-performance on his part.®" A more liberal view is adopted by Tamsen v. Schaefer, 108 N. Y. 604, which holds that even an action at law for damages is not of itself a rescission by vendee. Such action, says the court, does not release vendor from his obligation to convey, for vendee may still turn his action into one for specific performance. § 698. Vendee. — Vendor's failure to have completed proceedings necessary to authorize the conveyance on 57. Graham v. Bleakie, 2 Daly, 55. 58. Smith v. McCluskey, 45 Barb. 610; Brunner v. Meigs, 64 N. Y. 506, a%. 6 Hun, 203. The dictum in 'Eeilly v. King, 2 Kobt. 587, that in such case the court must be satisfied that the title is "absolutely bad" has been overruled. 59. Miner v. Hilton, 15 A. D. 55. 60. Thompson v. Lyons, 54 Super. 101. These two cases take such a technical view of rescission as almost to beg the question. A vendee is ordinarily required to show readiness; and in case of exchange defendant is ordinarily entitled to recover his ex- pense of examining a defective title. In Thompson v. Lyons, contract for exchange with bonus, the parties having stipulated that the " contract was rescinded," were held to the logical result of a rescission. 504 Remedy. the agreed day gives vendee a right to rescind. When vendee, having made tender and demand on that day, sues at law for his deposit, he is entitled to recover. Vendor's plea that the authorized deed was ready two weeks later and that time was not of the essence is no defense at law.^^ A vendee may refuse to perform and may recover his payments on account when the vendor's title proves defective, even though vendor tenders a warranty deed.®^ On discovering defects in title vendee may treat the con- tract as rescinded and demand repayment of his instal- ments of purchase money without tendering the balance due.«« Where the contract gives vendee the unusual priv- ilege of treating the sale as void in case of any defect, vendee may rescind because of a curable defect.®* Whenever the facts are such as, to defeat an action for specific performance by vendor, vendee may rescind.®^ It has also been held that where after a contract of sale, under which vendee undertook to improve the prem- ises before closing date, vendor in the interval con- veyed to a third person, vendee need not perform."® 61. Mandel v. Hopkins, 160 A. D. 872. 62. Atkins v. Bahrett, 19 Barb. 639; Everitt v. Conklin, 90 N. Y. 645. 63. Dominick v. Michael, 4 Sandf. 374; Hartley v. James, 50 N. Y. 38; Less v. Lawton, 118 A. D. 254; Smith v. MeCluskey, 45 Barb. 610. The decision in the last mentioned case that vendee may recover from vendor's assignee has been overruled. ■ 64. Delafield v. James, 18 Abb. Pr. 221. 65. Warren v. Banning, 21 Supp. 883, mod. 140 N. Y. 227; Schmidt V. Reed, 132 N. Y. 108, affg. 58 Super. 570. 66. James v. Burchell, 82 N. Y. 108. This decision may be just, but it is not convincing. There is nothing in the case to show that vendor could not have performed up to the letter of the contract on the closing date. See Tanzer v. Bankers Land &e. Cpn., 159 A. D. 351, and Chap. Ill, especially § 56. Rescission. 505 Extreme laches on vendor's part permits vendee to rescind.^'' Vendee may waive his right of rescission. He does so by not objecting to known defects when he is called upon to make a payment ; by entering into possession and continuiiHg with knowledge of defects to make payments on account of the purchase price. In such case he can- not afterwards recover his payments on account.*® Re- taining possession is sufficient in itself to waive the right of rescission for failure to close on the appointed date;"^ or to perfect title. '^*' He also loses his right to all relief by refusing to comply with a notice from ven- dor, accompanied by tender of vendee's deposit, to com- plete or cancel the contract. '^^ So long as vendor professes to be ready and willing to perform vendee cannot rescind without putting him in default by making a. demand. But when it has been put out of vendor's power to perform, as by foreclosure sale, vendee may treat the contract as rescinded and without demand for performance may recover his pay- ments on account. ''^ While vendor offers to carry out the contract,'^' curing defects of title, if any,^* vendee cannot rescind (where time is not of the essence). § 699. Vendor. — When vendee refuses to accept a deed sufficient to convey marketable title pursuant to 67. Tompkins v. Seely, 29 Barb. 212, rvsd. on other grounds 28 N. Y. 347. 68. Caswell, V. Black Eiver Cotton, etc., Mfg. Co., 14 Johns. 453. 69. Schroeppel v. Hopper, 40 Barb. 425. 70. Lewis v. McMillen, 41 Barb. 420; Tompkins v. Hyatt, 28 N. Y. 347, rvsg. 29 Barb. 212 ; McNair v. Newey, 23 W. D. 249. 71. Townsend v. Pendleton, 120 A. D. 890. The action was brought primarily for specific performance, but the complaint contained a general demand for other relief. 72. Burwell v. Jackson, 9 N. Y. 535. 73. Jones v. Wittner, 79 Hun, 283, affd. 151 N. Y. 649, without opinion. 74. Higgins v. Eagleton, 155 N. Y. 466, rvsg. 13 Misc. 223. 506 Remedy. the contract, vendor may rescind. In such, case he is not liable to repay vendee's deposit or for damages ;'^^ nor can vendee afterwards enforce specific perform- ance.''® An unwarranted demand by vendee for an affidavit that the prior ownei;^ was solvent is either a declaration that title is defective or an attempt to impose a condi- tion not bargained for; in either case it gives vendor the right to terminate the contract.''^ So does vendee's gross laches,''^ and his abandonment of the contract.''^ Where time is not of the essence vendee cannot be barred of his rights without! a notice requiring perform- ance within a specified reasonable time and stating expressly, distinctly and unequivocally that in default thereof his rights will be deemed abandoned. A vendee who before such notice offers to complete will be allowed to do so.*' § 700. Vendee's Lien. — Creation. — After some con- fusion it is now well settled that a purchaser of real estate unable to secure the title contracted for may assert against the premises a lien for the amount of his payments of purchase money, and may foreclose same in equity. Such lien is based on the theory that on the signing of the contract the vendee becomes the equitable owner and vendor thereafter holds the title merely as trustee.*^ 75. Beyer v. Braender, 57 Super. 429. 76. Weissberger v. Wallacli, 124 A. D. 382, approved 201 N. Y. 590. 77. Wormser v. Gqrvey, 4 Hun, 476. 78. Parisen v. Parisen, 1 T. & C. 642, concurring opinion. 79. Klingenstein v. Alexander, 57 Misc. 236. 80. Myres v. DeMier, 4 Daly, 343, affd. 52 N. Y. 647. 81. Occidental Realty Co. v. Palmer, 117 A. D. 505, affd. 192 N. Y. 588, without opinion; Elterman v. Hyman, 192 N. Y. 113, rvsg. 117 A. D. 519, and overruling Klim v. Sachs, 102 A. D. 44, and Vendee's Lien. 507 § 701. Extent. — The lien extends only to payments on account and improvements made pursuant to the contract ;^^ not for expense of examination nor general damages.** § 702. Enforcement. — ^Vendee though suing for spe- cific performance only, may when it has become apparent that vendor cannot convey marketable title, amend his pleadings so as to secure a lien in the pending action.®* Nor is it necessary that vendee should be in possession.*^ But vendee rescinding for fraud may not have a lien.** Where the premises are sold to enforce the ^lien, they must be sold subject to the encumbrances complained of.*^ A vendee unable to establish his lien because vendor never took title may take a money judgment.** And a vendee after establishing his lien may bring a separate action to recover the damages not capable of being in- cluded under the lien.** § 703. Assignee. — The vendee's assignee is not en- titled to a lien unless there has been a novation.*" Krainin v. Coffey, 119 A. D. 516, affg. 53 Misc. 6; Murphy v. Hurley, No. 1, 155 A. D. 465 (dictum). 82. Occidental Realty Co. v. Palmer, 117 A. D. 505, affd. 192 N. Y. 588, without opinion; Gibert v. Peteler, 38 N. Y. 165, ap- proving 38 Barb. 488. 83. Stevenson v. Spratt, 35 Super. 496. In so far a^ Reid v. Johnson, 121 Supp. 750, goes beyond the rule stated in the text, it cannot be considered an authority. 84. Maas v. Morgenthaler, 136 A. D. 359. 85. Elterman v. Hyman, 192 N. Y. 113, rvsg. 117 A. D. 519. 86. Goodman v. Schwab, 136 A. D. 583. 87. Price v. Palmer, 23 Hun, 504. 88. Elterman v. Hyman, 141 A. D. 208. 89. Occidental Realty Co. v. Palmer, 105 Supp. 171. 90. Hugel V. Habel, 132 A. D. 327 (dictum) ; Murphy v. Hurley, No. 1, 155 A. D. 465. 508 Remedy. § 704. Extinguishment. — Vendor's tender of market- able title destroys the lien.^^ § 705. Lis Pendens. — An action to establish and fore^ close a vendee's lien clearly affects the title, possession, use or enjoyment of real property and thereby entitles plaintiff to a lis pendens.^^ § 706. Vendor's Lien. — The vendor's lien, though less familiar, is also well established. In case of ven- dee's default, vendor may bring suit to foreclose the contract, demanding that the premises be sold and judg- ment be entered against defendant for the deficiency."* Such lien does not extend to an estate independently acquired by Vendee from another source."* Where the contract is for exchange of plaintiff's par- cel A, valued at |125,000, for defendant's parcel B, valued at |65,000, and |60,000 in mortgageis, and de- fendant cannot make title to parcel B, plaintiff cannot have a lien for the full valuation, |125,000, of parcel A."^ § 707. Miscellaneous. — Covenant. — Before closing, it is a question of. apparent defects ; after closing, of actual defects only. After taking title, purchaser is relegated to an action on the covenants in his deed and must prove breach thereof; an apparent cloud or mere unsubstan- tiated parol claim breaks no covenant.?* 91. Johnson v. Duncan, 2 How. Pr. N. S. 366. 92. Baohmann v. Wagner, 16 Supp. 67. 93. Biden v. James, 3 S. R. 734, affd. Ill N. Y. 680, without opinion. 94. Bensel v. Gray, 62 N. Y. 632. 95. Sternberger v. McGovern, 56 N. Y. 12, rvsg. 4 Daly, 456. Not a very satisfactory case. The reasons suggested at general term for not allowing the lien — that plaintiff had not surrendered possession or received any part of the purchase money — are not sound. 96. Wilson v. Parshall, 129 N. Y. 223 (and dicta), approving 4 Silv. Supm. 374. Remedies. 509 § 708. Execution. — A party, who after purchase at sheriff's sale has refused to complete because of an irreg- ularity, may sue the sheriff for his deposit as for non- payment of money collected upon execution; nor can the sheriff deduct his expense, since purchaser was not at fault for the abortive sale.^'^ § 709. Injunction. — In several old cases of little au- thority an injunction was allowed against a vendor who failed to complete because his wife refused to join — in the first case restraining him from disposing of the land;^* in the second against collecting the value of the inchoate dower.®® It may be doubted whether either of these precedents would be followed to-day. § 710. Mandamus. — When vendor seeking to enforce Ills sale to a municipality, has tendered a satisfactory deed, and all that remains to be done is a ministerial performance of duty by the financial officer, such as issuing authorized bonds and making actual payment to vendor, a mandamus is a proper remedy. The fact that an action of specific performance would lie is no objection. When all disputed facts taken most favor- ably to defendant form no defense, the mandamus should t)e peremptory.^"" § 711. Ejectment. — Ejectment is the proper remedy against a vendee in possession who refuses to com- plete.^"^ If vendee claims that vendor cannot make good title, he may interpose an equitable plea.^"^ Such possession is not adverse to the vendor. ^"^ 97. Bowne v. O'Brien, 5 Daly, 474. 98. Pomeroy v. Drury, 14 Barb. 418. 99. Wood V. Chew, 13 How. Pr. 86. 100. People ex rel. Taylor v. Brennan, 39 Barb. 522. 101. Pierce v. Tuttle, 53 Barb. 155. 102. Rhoades v. Freeman, 9 A. D. 20 {dictum). 103. Same. 510 Damages. § 712. Arbitration. — Under a contract which provides that if a certain title insurance company refuses to insure vendee shall recover his deposit, the question of marketability is left to the arbitration of said title company. Its decision is conclusive and may not be upset because the court does not agree therewith.^"* 5. Damages. § 713. Vendee's Measure. — Private Sales. — The ra- tional rule of damages on private sales is the rule pre- vailing in contracts for the sale of personalty — that the aggrieved party may recover the difference between the value and the contract price.' Real estate has a rule of its own — that where the vendor is unable, with- out fault on his part, to make marketable title, he is liable only for payments on account with interest and vendee's actual and necessary expenses. The reason for the latter rule is a matter of conjecture. It has descended from days too remote to trace, originating perhaps as a!n offset to the highly technical require- ments of marketable title. ^ In the discussion of this peculiar rule, the ordinary phraseology of the law of damages becomes confusing. "Nominal damages " may describe a substantial re- covery ; " actual damages " may be limited to the dif- ference between price and market value. For the sake of clearness it seems best to avoid such termin- ology, and looking at the practical situation of the complaining vendee, speak in terms that describe what actually happens. His recovery, for instance, is ordi- narily limited to his payments on account and ex- penses. Let us call that Rule 1 — Deposit and Ex- penses. He may under some circumstances recover the 104. Green-Shrier Co. v. State Realty & Mortgage Co., 199 N. Y. 65, rvsg. 129 A. D. 581. 1. Empire Realty Cpn. v. Sayre, 107 A. D. 415. PUROHASEE AT JUDICIAL SALE. 511 difference between the value of the premises and the con- tract price : Rule 2 — Value. He may finally claim spe- cial injury, as the loss of a highly profitahle resale, or other consequential and perhaps remote result of the breach. How far such claim will be allowed is really a question not of marketability, but of the substantive law of damages. In the marketability cases the rule is not as clearly defined as could be desired, nor is its re- lation to Rule 2 fully discussed. For convenience, and without further definition, it will be referred to as Rule 3— Full Damages. It should be evident from the nature of the situation that Rule 1 applies only to vendees. While there is little if any conflict of decision in this respect, the opin- ions do not always keep in mind the distinction be- tween vendors and vendees. § 714. Judicial Sales. — On judicial sales, as has re- cently been decided by the court of appeals, compensa- tion for defective title is based not on contract, but on equity. The court may in its discretion award to a purchaser, who has had an opportunity to examine the title before bidding, such compensation as appears equitable. When therefore a purchaser declined to give a receiver an opportunity to remove the defect, he was. allowed to recover his deposit but not his ex- pense of examination nor even costs of the pro- ceeding.^ A purchaser whose objection is sustained is ordi- narily allowed to recover his deposit with interest and expense of examination.* A purchaser may recover equitable compensation for a delay in closing for which he is not to blame. 2. People V. N. Y. Building-Loan Banking Co., 189 N. Y. 233; March v. Marasco, 165 A. D. 348. 3. Lake v. Kessel, 64 A. D. 540. 512 Damages. Where he had paid interest on the purchase money, it was ordered refunded.* But he may not have leave to complete upon subtracting from the bid an allowance for a defect.^ § 715. Generally. — In Hening v. Punnett, 4 Daly, 543, it was held that a vendee who had unwarrantably re- fused to complete could nevertheless counterclaim for his deposit when afterwards sued for damages by the vendor, who had meanwhile sold to a third party. This remarkable case, of a person who is adjudged to be in default recovering against one who admittedly is not, stands alone. It has several times been discredited on other points involved, and is not likely to be fol- lowed on this. In any case defendant is entitled to "a bill of particu- lars of the alleged damage.® § 716. I. Deposit and Expense. — It has been estab- lished from a very early date that in an action on a contract for the purchase of real estate, where the ven- dor is unable through no fault of his own, to convey good title, the vendee may recover the purchase money and interest, but cannot recover for the increased value of the land.^ It has also long been settled that the vendee's actual, reasonable expenses incurred in preparing on his part to perform, such as examining the title, are recoverable.^ When there has been 4. Grabfelder v. Tallman, 36 Misc. 247. 5. Thompson v. Sehmeider, 38 Hun, 504, app. disd. 102 N. Y. 504 6. Gross V. Conner, 114 A. D. 32. 7. Brazier v. Wynkoop, 3 Johns. Gas. 440 {dictum) ; Baldwin V. Munn, 2 Wend. 399 {dictum). 8. Coekroft v. N. Y. & H. E. B,. Co., 69 N. Y. 201; Hoehstein v. Vanderveer Crossings, Inc., No. 1, 150 A. D. 118; Bigler v. Mor- Deposit ane Expenses. 513 neither payment on account nor expense vendee can recover only six cents damages.® § 717. Items Eecoverable. — The expense of the suit in which vendee was evicted is suggested obiter as an allowable item of damage;^" but the point does not seem ever to have been actually decided, and though plausible, the suggestion is at variance with the rea- soning of other cases. He was allowed in McMulkin V. Bates, 46 How. Pr. 405, to recover the amount he had paid for taxes. The auctioneer's fee is recover- able." The vendee is also entitled to employ a title company and personal counsel to examine the title, and may recover the fees of both.^^ Architect's fees are not recoverable;^* nor broker's commissions ;^* nor the expense of moving to and from the premises ;^^ nor interest on money borrowed to complete the purchase.^** Vendee is not ordinarily justified in making improve- ments before the title passes, and may not recover what he has improvidently expended in that manner.^^ A different situation arises when the contract calls for gan, 77 N. Y. 312; Hewison v. Hoffman, 15 Daly, 176; Porterfield V. Payne, 11 Supp. 31; Northridge v. Moore, 118 N. Y. 421; Place V. Dudley, 41 A. D. 540. 9. Smith V. Riggs, 2 Duer, 622; Leggett v. Mutual Life Ins. Co., 53 N. Y. 394, rvsg. 64 Barb. 23. 10. Peters v. Mc Keen, 4 Den. 546. 11. In re Campbell, Tucker, 240; Wetmore v. Bruce, 118 N. Y. 319, affg. 54 Super. 149. 12. Maupai v. Jackson, 139 A. D. 524. 13. Chamberlin v. Brady, 94 N. Y. 649; Prentice v. Townsend, 143 A. D. 151. 14. Empire Realty Cpn. v. Sayre, 107 A. D. 415 (dictum). 15. Conger v. "Weaver, 20 N. Y. 140 ; Peters v. Mc Keon, 4 Den. 546 (dictum). 16. Lake v. Kessel, 64 A. D. 540. 17. McMulkin v. Bates, 46 How. Pr. 405; Prentice v. Townsend, 143 A. D. 151; "Walton v. Meeks, 120 N. Y. 79. 33 514 Damages. improvements before closing; in such case tkey may be recouped if title proves unmarketable.^^ Vendor is liable for damage to the premises after the contract due to his ovs^n neglect.^^ §1 718. Interest. — The vendee's interest on his deposit runs from his demand for its return.^" In order to recover it, he must prove such demand; and may not bring a separate suit therefor after recovery of the principal.^^ Where the vendee's payment has on his ovrn motion been ordered to remain in the custody of a trust company, vendee can recover, not six per cent, but only the interest actually eamed.^^ Where the vendee in spite of the defects demands specific performance. Rule 1 no longer applies; the re- lations of the parties are exactly reversed and the con- sideration is regarded as equitably the property of the vendor from the closing date. Prima facie the vendee is chargeable with interest on the unpaid balance from that date. As the vs^hole transaction is before the court for adjustment on an equitable basis, the special term or the appellate division is free to consider all the circumstances. In Felix v. Devlin, 90 A. D. 103, the vendor being excused from conveying a gore of substantial value and being allowed to keep the rents, was not permitted to recover any interest. In HafPey v. Lynch, 193 N. Y. 67, the court of appeals did not feel free to change the principles on which the lower courts had adjusted damages, but applied the rule of partial payments, offsetting rental value against in- terest on the unpaid balance. In Stewart v. Gillett, 79 18. Gibert v. Peteler, 38 N. Y. 165. 19. Bostwick V. Beach, 105 N. Y. 601. 20. Walsh V. Meyer, 25 W. D. 168. 21. Coekroft v. Muller, 71 N. Y. 367. 22. Warren v. Banning, 140 N. Y. 227. Deposit and Expenses. 515 Misc. 93, the vendee, who had deposited the entire con- sideration in a banl: subject to vendor's order on pro- duction of a proper deed, was alloAved interest thereon as compensation for loss of use and occupation. § 719. Rents. — Rents take exactly the opposite course from interest. When the contract is performed they belong to the vendee from the closing date;^^ when it is rescinded, vendee loses Ms claim to them;^* when, the court adjusts the equities it may award rents to. either party.^^ A vendee who takes possession is not chargeable with the rental value during his occupancy.^" §! 720. Good Faith. — Vendee objected to title on the ground that it was not satisfactorily shown that ven- dors were the sole heirs of the former owner M. Ven- dors proved that they were heirs of M, had been unable to find any other heirs and believed themselves sole heirs. It was held that while the evidence of heirship was not so conclusive as to establish marketable title, yet it showed that vendors had acted in good faith.^^ Where vendor has engaged in litigation to assert or defend the title on the strength of which he contracted, he should be allowed to prove same to show good faith even though he was unsuccessful in the action.^® 23. Haffey v. Lynch, 193 N. Y. 67; Morrison v. Bauer, 26 W. D. 40. 24. Miele v. Deperino, 4 Silv. C. A. 611. 25. Felix v. Devlin, 90 A. D. 103. 26. rietcher v. Button, 4 N. Y. 396, affg. 6 Barb. 646. The case of McMulkin v. Bates, 46 How. Pr. 405, to the contrary, at special term, cannot be considered an authority. 27. Walton v. Meeks, 120 N. Y. 79, a%. 41 Hun, 311. 28. Hochstein v. Vanderveer Crossings, Inc., No. 1, 150 A. D. 118; Same, No. 2, 150 A. D. 121. The court is mistaken in stating that the premises were 600 ft. away from the creek agreed to be filled in. In neither action did the distance exceed 150 ft. 516 Damages. The existence of an ejectment suit in which no move had been made for seven years is not, in the absence of evidence that vendor knew of it, proof of bad faith; nor is vendor's failure after learning of it to push it to trial within a year.^^ Where defendant did not know that the premises were included in a certain trust deed, and on learning thereof offered security, its good faith was upheld as against a purchaser claiming full damages.^" Where it is clear that vendor knew of the defect, but in spite of it made a positive engagement to con- vey, he is not given credit for good faith. The follow- ing cases illustrate the rule : — Defendant was a trustee with power to sell only on V's consent; he contracted to convey and was unable to obtain her consent. ^^ A husband who cannot persuade his wife to release her inchoate right of dower is in the same difificulty.^^ So where husband and wife own the premises jointly; nor is it material that vendee knew that fact.^* Where vendor at the time of the contract had no legal title at all, he cannot rely on his own contract of pur- chase at a later date, to show good faith. Eule 1 ap- plies only where the vendor is unable to convey because of a defect in title — not because of inability to get any title at all.^* Vendor may however protect himself by express provision in the contract of sale reciting vendor's expectation of title and limiting damages in case it is not realized.^^ 29. Rosenberg v. Haggerty, 141 A. D. 73. 30. Cockroft v. N. Y. & H. R. R. Co., 69 N. Y. 201. 31. BrinckerhofE v. Phelps, 24 B'arb. 100, approved 40 N. Y. 59 (Pumpelly v. Phelps). 32. Heimburg v. Ismay, 35 Super. 35. 33. Timby v. Kinsey, 18 Hun, 255. 34. Marsh v. JohAston, 125 A. D. 597, afld. 196 N. Y. 511, with- out opinion. This ease must be considered as overruling Blate V. Clarry, 50 Misc. 668. 35. McCarten v. Smith, 163 A. D. 900. Value. 517 It requires nice distinction to reconcile with this principle the case of Lockridge v. Eaab, 68 Misc. 230. There the record title was in R but was rejected by L on a question of the application of a will. Within a year thereafter E brought suit to have the deed to himself declared a mortgage and foreclosed. L then sued for the increase in price realized on the foreclos- ure sale; but his complaint was dismissed. As R really did not have title, it might have been better not to stretch the anomalous Rule 1 to cover this as a case of contracting good faith. § 721. //. Value. — The rule of damages where good faith is lacking is that vendee may recover the difference between the contract price and the market value. ^^ Where it is in vendor's power to remedy the defect in his title and he refuses or neglects to do so, he is liable to the vendee for the loss of his bargain.*'^ So where vendor seeks to avoid the contract in order to get a better price, even though the defect, such as in- choate dower, is not within his power to cure.*^ Where vendor refuses to convey and damages are awarded instead of specific performance, the measure is the difference between .contract price and value. This rule will be extended to a vendor who after hav- ing raised technical objections to vendee's tender, with the evident hope of retaining both the land and 36. Farley v. Secor, 167 A. D. 80; and cases above cited. In Brinckerhoff v. Phelps, 24 Barb. 100, the court' says that vendor must pay in damages the value of the land at the time of the breach; but it was conceded that the unpaid balance of the pur- chase price must be deducted. The value at the time of the trial is mentioned in Church v. Bourne, 79 Misc. 629. 37. Margraf v. Muir, 57 N. Y. 155 (dictum) ; Schreiber v. Elkin, 118 A. D. 244. 38. Schorr v. Gewirz, 39 Misc. 186. 518 Damages. the moneys paid under tlie contract, relies on an out- standing inclioate dower to defeat specific perform- ance.^' Whether under Rule 2 the vendee should recover his deposit and expenses — and other items — in addi- tion to value is given little attention in the opinions. In Marsh v. Johnston, 125 A. D. 597, it is taken for granted that he should; but in Margraf v. Muir, 55 N. Y. 155, he did not. The reason of the rule of value is that the vendee should be placed in the same posi- tion as though the contract had been carried out. Now if the contract were carried out and the property re- sold to at its market value, an advance of flOOO in price, the net result to the original vendee A would be a profit of flOOO less expenses. A's payment on ac- count in that case would have been followed by other payments, all of which would have been balanced (with flOOO over) by the price paid by C. It follows that the deposit is on a different footing from the ex- penses ; that the vendee should recover his deposit only, in addition to value. As the question may still fairly be said to be open, perhaps the law will eventu- ally draw this distinction. In Ryder v. Wall, 29 Misc. 377, the issue was pre- sented in partition as a defense by the purchaser in pos- session under private contract. He was evidently en- titled at law to recover under Rule 2 because the ven- dors had contracted without title and had concealed a material fact; but instead he demanded repayment of the moneys he had expended on account of the pur- chase, for repairs and improvements, and for broker's fee — whether more or less than value damages does not appear. The court directed that all said disburse- ments be paid him, with costs, out of the proceeds of the partition sale. , 39. Parley v. Secor, 167 A. D. 80. Full Compensation. 519 § 722. Fraud. — In the few cases where actual fraud has been shown, there is nothing in the language of the opinions indicating that vendee's recovery should be limited to Eule 2. On general principles, it would seem that the vendee should recover all consequential damages; but none of these cases shows any peculiar facts from which can be inferred what injury, if any, besides value will be compensated. In Everson v. Kirtland, 4 Paige, 628, the court re- marked obiter that as there was fraud, vendor might have been charged with the full value of the premises mistakenly described in the contract — which were not the land he fraudulently intended to contract to sell. In Wohlfarth v. Chamberlain, 14 Daly, 178, the ven- dee was held entitled to recover as damages all loss he sustained by failure to get good title, amounting -to $1500. How this was computed does not appear. In Darrow v. Cornell, 12 A. D. 604, vendee was al- lowed to choose between "actual" and liquidated damages. His recovery for "actual" injuries seems on the first trial to have been only the amount ex- pended for improvements. § 723. III. Full Damages. — The principle of Kule 3 was recognized in Horton v. Childs, 4 Silv. Supm. 431, approved 129 N. Y. 148. There vendor had agreed to remove an encroachment within thirty days after clos- ing. Through his failure to do so vendee claimed to have lost a large profit on resale, and was allowed to counterclaim for full damages in an action by vendor to foreclose a purchase money mortgage. On the sec- ond trial, however, it appeared that the resale was not bona fide, and vendee's counterclaim was allowed for only six cents. 520 Damages. § 724. Vendor's Measure. — The general rule of ven- dor's damages is the difference between actual value and agreed price.*" Where there is no such difference, that is, where the price was not above the market and the property has not depreciated, vendor can recover nominal damages only.*^ Where vendor did not have title, the measure of damages is the difference be- tween the price at which he could have purchased (not lower than market value) and the contract price; for if he could have bought below the market, he may still do so, says the court, and make his profit — and perhaps he can.*^ § 725. Expenses. — Where vendee in foreclosure raised an untenable objection, he was held liable for the ex- pense of a resale, but not for the expense of correcting an irregularity.*^ A tax imposed after the original sale will be regarded as part of such expense.** Where vendor had arranged to satisfy certain mort- gages out of the purchase price, and vendee unwar- rantably refused to complete, vendor was allowed to recover a commission and disbursements incurred in getting a new mortgage to replace the existing ones on their maturity.*^ The defaulting vendee was held liable for the fee paid by vendor to the broker who procured the con- tract of sale in question; but upon what theory is not 40. Wilson V. Holden, 16 Abb. Pr. 133; Bensinger v. Erhardt, 74 A. D. 169. 41. Congregation Beth Elohim v. Central Presbyterian Church, 10 Abb. Pr. N. S. 484. 42. Booth V. Milliken, 127 A. D. 522, affd. 194 N. Y. 553, on other grounds. 43. Knight v. Moloney, 4 Hun, 33. 44. Ruhe v. Law, 8 Hun, 251. 45. Cogswell V. Boehm, 5 Supp. 67. Vendor's Measure. 521 apparent, for vendor would have had to pay it just the same if title had passed.*" § 726. Interest and Rent. — As a general rule vendor gets interest from the time for performance;*'' but where vendor caused delay, interest was held to run only from tender of good title, and from that date vendee was given the option to pay interest and take the rents and profits or relinquish the rents and be ex- empt from interest.*® The rule of partial payments applies; and interest due from vendee will be set off against rental due from vendor, so that the latter item when smaller shall not itself bear interest.*^ Where no allowances for rents and profits was made in the judgment, the provision for interest was struck out by the appellate court.^" Where the purchaser agrees to take subject to a mortgage, vendor's damages include the interest on such mortgage which he has been obliged to pay after closing date because of vendee's default.^^ If vendee has already paid such interest, he may not recover it on completing a judicial sale after a delay in closing for which he was not to blame. ^^ Where vendee pays the balance due into a bank sub- ject to the order of vendor on delivery of a proper 46. Henning v. Punnett, 4 Daly, 543. The general term of the New York superior court repudiated this decision in Steers v. Laird, 3 Misc. 408 (not a Marketability case). 47. Morrison v. Bauer, 26 "W. D. 40; Bostwick v. Beach, 105 N. Y. 601; Cleveland v. Burrill, 25 Barb. 532; Pierce v. Nichols, 1 Paige, 244. 48. Dias v. Glover, Hoff. 71; Merchants' Bank v. Thomson, 55 N. Y. 7. 49. Haffey v. Lynch, 193 N. Y. 67. 50. Johnston v. Garvey, 139 A. D. 659, affd. 201 N. Y. 548, on opinion below. 51. Cleveland v. Burrill, 25 'Barb. 532. 52. Grabfelder v. Tallman, 36 Misc. 247. 522 Damages. deed, vendee is not liable for interest.^^ Nor where tlie objection to title raises an, "open and debatable" question." § 727. Resale. — Where the purchaser at a judicial sale wrongfully refuses to complete and the premises are resold, the terms of the resale must be the same as the terms of the original sale in order that the ven- dee's liability may be measured by the loss on resale. If any change of terms be made, vendor has the bur- den of showing that it did not affect the sale.°^ The circumstances of the resale must also be equally fav- orable.^^ A second sale under private contract is no evidence of market value on the closing date of the first con- tract, and loss thereon does not prove any damage to vendor.''' § 728. Exchange. — On a contract of exchange A raised an objection and refused to complete. B sued for damages and having proved satisfactory title was allowed to recover the excess value of A's premises and the expense of preparing his own abstract of title.'* In equity the court will not enforce specific performance with an allowance for the defect, for it would be unjust to introduce a cash adjustment into the trade.'^ The aggrieved party, suing at law, may recover the ditference in value between a marketable title and one containing the defect in question.^" 53. Bostwick v. Beacli, 103 N. Y. 414. 54. Taile v. Crawford, 30 A. D. 536, 546. 55. Riggs V. Pursell, 74 N. Y. 370. 56. Guli V. West, 65 Hun, 1. 57. Keitel v. Ziramermann, 19 Misc. 581. 58. Pagert v. Davison, 2 Duer, 153. ' 59. Sabriski v. Veloski, 25 Abb. N. C. 185. 60. Sternberger v. McGovern, 56 N. Y. 12, rvsg. 4 Daly, 456. Damages. 523 Plaintife agreed to pay |10,000 and convey 320 a. in consideration of defendant's farm; he had paid |6,000 and conveyed the 320 a. when the defendant objected to the title of 160 a. Both parties ask for specific per- formance. It was held that on receiving the cash bal- ance of |4,000 with interest thereoh and the value of the defective 160 a., as determined by the referee, de- fendant should convey. The fact that defendant's farm was worth |16,400 and plaintiff's land only |640 was, in the absence of fraud or misrepresentation, given no weight whatever."^ A similar rule was applied under similar circum- stances in an action at law: — Plaintiff was allowed to recover the value of the parcel title to which was de- fective, together with his reasonable and necessary expenses, including examination of title, in attempt- ing to perform.®^ § 729. Other Actions. — Where an execution sale is irregular, the vendee refusing to complete may recover from the sheriff the full amount paid on accoutft. The sheriff's expenses cannot be deducted.*^ Defendant, an attorney, advised plaintiffs A, B and C that they could not by deed convey good title to C. Having thereupon at great expense partitioned the premises, they brought suit for treble damages, under 2 R. S. 287, § 68. It was held that they could recover the actual expense to which they were put by such dis- honest advice, but not treble damages.®* A title company employed to draw the contract, ex- It should be observed that a majority of the court did not concur in the opinion. 61. Anthony v. Crippen, 24 W. D. 86. 62. Corrigan v. Tunk, 109 A. D. 846. 63. Bowne v. O'Brien, 5 Daly, 474. 64. Looff V. Lawton, 97 N. Y. 478. 524 Damages. amine and close, has the same responsibility as an at- torney; if negligent, it is liable for the resulting loss.^* Defendant contracted to convey free and clear, ex- cepting certain monthly tenancies, and delivered a deed containing such exception. Tenants refused to pay the next month's rent, claiming a special agree- ment by the defendant to exempt them therefrom. It was held that defendant was liable for the difference between the rental value of the premises and the amount of rent withheld.®" § 730. Liquidated Damages. — Parties who have fixed on a moderate sum as damages must abide by it.®'^ A provision for |1,000 liquidated damages in a con- tract involving about |7,000 is not illegal nor unreas- able nor a penalty; it is valid and enforcible as against a vendor failing to convey marketable title by a ven- dee who has given a note for |1,000 on account.*^ So of |200 on a |5,000 contract on which nothing has been paid.®^ Where there is fraud plaintiff may elect between ac- tual and liquidated damages, but cannot recover both.'"> Where the title tendered, though good, was not mar- ketable, a judgment in favor of vendee for both de- posit and liquidated damages was reversed, and plain- tiff was adjudged to be entitled to his deposit only.'^^ 65. Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10, affg. 89 Hun, 120. 66. Toch V. Horowitz, 87 Supp. 455. It is not explained why plaintiff was allowed to sue on the contract after having accepted the deed. 67. Van Derminden v. Essig, 2 City Ct. 38. 68. Holmes v. Holmes, 12 Barb. 137, affd. 9 N. Y. 525. 69. Brinkerhoff v. Olp, 35 Barb. 27. 70. Harrow v. Cornell, 12 A. D. 604. 71. Ingalls V. Hahn, 36 S. R. 770. Pleadings. 525 A provision for |5,000 liquidated damages for ven- dor's failure to deliver a proper deed to convey fee simple free and clear, with covenant against gran- tor's acts, or for vendee's failure to pay |5,000 cash and execute a proper mortgage for $10,000, would be construed strictly to apply only to delivery of such deed; it would not be extended to damages resulting from defects in title for which vendor was not respon- sible. '^^ After payment on account vendor was not allowed to collect liquidated damages.'^* 6. Practice. § 731. Lis Pendens. — A vendee suing for his deposit and demanding a lien therefor is entitled to file a Us pendens against the premises;^ and a lis pendens has been allowed even where the complaint neither alleged possession nor demanded any relief except a money judgment.^ Where vendee also demands specific performance, ven- dor will not be allowed to cancel the Us pendens upon an undertaking.* , § 732. Pleadings. — Complaint and Answer. — A com- plaint alleging that plaintiff does not know whether 72. Leggett v. Mutual Life Ins. Co., 53 N. Y. 394, rvsg. 64 Barb. 23. 73. Lampman v. Cochran, 19 Barb. 388. 1. Kennedy v. Hall, 51 Misc. 78, affd. 114 A. D. 913, without opinion. Gerzog Davidoff Construction Co. v. Levin, 124 A. D. 904, to the contrary, is no longer law. It was decided during a period when the appellate division of the second department was treating vendee's lien eases as actions at law. 2. Smadbeck v. Law, 106 A. D. 552. 3. Kennedy v. Hall, 51 Misc. 78, afEd. 114 A. D. 913, without opinion. 526 Practice. title is good or not, does not show that either vendor or vendee is in default.* A vendor's complaint alleging readiness to perform entitles him to prove tender of proper deed from the owner; it need not set forth in what manner plaintiff proposed to make title.' A vendee must allege tender of all that the contract called for, or else, as an excuse therefor, the existence of non-removable encumbrances.* Even though showing vendor's inability to perform, vendee must still allege his own readiness at the ap- pointed time.'' Vendor suing for specific performance under a con- tract which provided that part of the purchase price be left on mortgage, demanded in his complaint that de- fendant execute for such sum a mortgage containing a Brundage clause. This was held to relieve defendant; and plaintiff was not allowed on trial to offer to accept a mortgage in the usual form, not having pleaded such offer.® Under a contract providing for title to be approved by a title insurance company, it is no part of vendor's case to prove such approval. Consequently his com- plaint is not demurrable for failure to allege same.® When vendee's complaint demands specific perform- ance, vendor can base a demand for jury trial only upon an answer alleging inability to perform and that plain- tiff has a complete and adequate remedy at law.^" A 4. Cohn-Baer-Myers & Aronson Co. v. Realty Transfer Co., 117 A. D. 215, affd. 191 N. Y. 533. 5. Clexton v. Tunnard, 119 A. D. 709. 6. New York City Estates Co. v. Central Realty Co., 118 Supp. 1054; Kerr v. Purdy, 51 N. Y. 629. See also Clute v. Robison, 2 Johns. 595, as to sufficiency of vendor's plea of tender. 7. Camp V. Redmond, 59 Hun, 377. 8. Feist V. Block, 115 A. D. 211. 9. Downs V. Lehman, 123 A. D. 11. 10. Snow V. Monk, 81 A. D. 206. Bill of Particulars. 527 vendee, sued for breach of contract, having in its answer demanded specific performance, should not bring a sep- arate suit to enforce the contract. ^^ It is now well established that vendee may demand in the alternative specific performance or damages.^^ § 733. Definite and Certain. — A complaint founded upon unmarketability of title should, according to the old strict rules of pleading, allege that the claim which is said to impair title is a "lawful" claim.^^ In 1853 a vendee's plea that the premises were subject to the lien of a judgment against J M, a former owner, was held not to raise the question of apparent lien aris- ing from a judgment against another person of the same name.^* Under the Code it is sufficient to set forth the alleged defects with a general allegation of vendor's inability to perform.^^ In an action against an attorney for negligence in not advising vendee of existing encumbrances, such en- cumbrances must be pleaded with certainty.^" Adverse claim should be pleaded with facts showing the names of claimants and character of their holdings.^'' § 734. Joinder of Actions. — Actions for fraud and unmarketability cannot be joined ; the latter is founded on the contract, the former disaffirms it.^^ § 735. Bill of Particulars. — It has several times been held that since title is matter of public record, a party 11. Hicksville &c. RR. v. Long Island RR., 48 Barb. 3.55. 12. Barlow v. Scott, 24 N. Y. 40. 13. Folliard v. Wallace, 2 Johns. 395. 14. Fagen v. Davison, 2 Duer, 153. 15. Cohn-Baer-Myers & Aronson Co. v. Realty Transfer Co., 117 A. D. 215. 16. Elder v. Bogardus, Lalor's Supp. 116. 17. Clarke v. Hughes, 13 Barb. 147. 18. Kranz v. Lewis, 115 A. D. 106. 528 Practice. moving for a bill of particulars must show that he lacks the information sought.^^ A corollary from this rule is that the court will not require vendor to furnish an abstract of title.^" The vendor is in general entitled to be apprised before trial of specific defects.^^ Where vendee com- plains of a "number of violations" and "other encum- brances and charges," he will be required to specify them in a bill of particulars.^^ And he will also be required to give the items of his damage; but not the name of his counsel who examined title, nor "the re- spects in which vendor refused to comply with the contract."^* If a bill of particulars is ordered, it is not necessary to make the pleadings more definite and certain.^* § 736. Stay. — A party entitled to a bill of particu- lars does not thereby become entitled to a stay.^^ § 737. Trial. — ^In chancery it was the practice to refer the issue in a suit for specific performance to a master to report an abstract of title with his opinion.^^ But when the title exhibited was uncertain on a ques- tion of fact, the chancellor would refer it to a jury.^'' When plaintiff sues for damages because of defend- 19. Messer v. Aaron, 101 A. D. 169; Borgrosser v. Risch, 149 A. D. 248. 20. Borgrosser v. Riseh, 149 A. D. 248. 21. Cleveland v. Burrill, 25 Barb. 532; Lahey v. Kortright, 55 Super. 156. 22. Gross v. Conner, 114 A. D. 32; Markowitz v. Teichman, 52 Misc. 458. 23. Same. 24. Lahey v. Kortright, 55 Super. 156. 25. Borgrosser v. Eisch, 149 A. D. 248. 26. M'Comb v. "Wright, 4 Johns. Ch. 659; Seymour v. Delancy, 3 Cow. 445, 535, rysg. 6 John. Ch. 223. 27. Seymour v. Delancey, 1 Hop. 436, affd. 5 Cow. 714. Proof of Title. 529 ant's failure to perform the contract, plaintiff cannot be deprived of his right to a jury trial.^* The verdict of the jury must first be taken on the issues of fact and should be respected.^* If defendant counterclaims for specific performance, he is doubtless entitled to a special term trial of the issues arising on his plea;^" but he waives such right by notice of trial at circuit.^^ A vendee suing for specific performance states an equitable cause of action, triable by the court without a jury, even though he alleges that because of an en- croachment vendor cannot perform ; for defendant may by purchase before trial put himself in a position to perform.*^ If vendee, concluding that vendor cannot perform amends by demanding a money judgment only, it seems that defendant might by timely demand have a trial by jury.^^ § 738. Proof of Title. — Correction. — It is ordinarily suflicient in equity if vendor is able to make good title at the time of the decree. When pending the action he supplies the missing link, vendee is entitled to have the title examined and passed upon under supervision of the court.** So where title devolves pending suit or after decree, the new instruments tendered by vendor may be questioned by vendee; if so, the matter should be submitted to a referee to ascertain whether under 28. Wasserman v. Taubin, 129 A. D. 691. 29. Elfenheim v. Von Hafen, 3 Misc. 626; Simis v. .McElroy, 160 N. Y. 156, a%. 12 A. D. 434; Epstein v. Eoekville Centre Improvement Co., 164 A. D. 177. 30. Brody, Adler & Koch Co. v. Hochstadter, No. 2, 150 A. D. 530; Wasserman v. Taubin, 129 A. D. 691. 31. Tubbs v. Embree, 89 Hun, 475. 32. Krasnow v. Topp, 128 A. D. 156. 33. Reynolds v. Wynne, 127 A. D. 69 (dictum). 34. Pierce v. Nichols, 1 Paige, 244; Reformed Protestant Dutch Church V. Mott, 7 Paige, 77. 34 530 Practice. the changed circumstances vendor's successors in inter- est can make title.^^ § 739. Explanation. — Where the records show an ap- parent encumbrance or defect, it is vendor's duty to explain same. If he has omitted to make proof in re- spect to it, the matter must be referred for further proof. ^^ The court may also decide the question on affidavits, imposing such conditions as may be neces- sary to protect both parties. *'' § 740. Objections to Title. — Motion for relief from, purchase at a judicial sale is ordinarily founded upon affidavit. Where the objection is a covenant against nuisances, it requires little evidence to show that the value of the premises has been depreciated; and the moving affidavit may serve that purpose. If more evi- dence is desired by the court, purchaser should be al- lowed to amplify his view of value.** Purchaser may, after adjudication upon the precise point raised by his first motion, renew his application for relief upon further affidavits supplying proof of a fact previously omitted, such as the materiality of the defect relied on.*' § 741. Reference. — ^Where specific performance with. an abatement from the purchase price is decreed, the amount of such abatement may be determined upon a reference.** 35. Roome v. Phillips, 27 N. Y. 357 (dictum) ; Daniels v. Brodie, 3 Edw. 275. 36. Spring v. Sandf ord, 7 Paige, 550 ; Toole v. Koenler, 14 S. R. 934; German- American &e. Co. v. Meyers, 32 A. D. 41. 37. Wanser v. DeNyse, 188 N. Y. 378, rvsg. 116 A. D. 796. 38. Conlen v. Rizer, No. 1, 109 A. D. 537. 39. Riggs V. Pursell, 74 N. Y. 370. 40. King V. Bardeau, 6 Johns. Ch. 38. Appellate Court. 531 The court has no power to order a commission to take testimony outside of the state for use upon a reference to take proof of title.*^ Where the contract called for the most southerly 20 acres of M Farm, the appellate division thought that a referee could lay out the premises to be conveyed; but the court of appeals held the contrary.*^ § 742. Decree. — If a vendee in possession success- fully defends a suit for specific performance, the con- tract should be declared void, so as to give vendor ground for an action of ejectment and recovery of the rents and profits.** § 743. Appellate Court. — The court may receive, on appeal and consider a written instrument not annexed to the moving papers below.** After a hearing on the merits, if the courts below differed on the ground for deciding the motion, the court of appeals may relieve the purchaser.*^ When the facts are all before the court and it is ap- parent that vendor cannot make good title, there is no use of further inquiry and an appellate court should render final judgment dismissing the complaint.*^ The appellate division should, however, exercise this prero- gative with extreme caution. It seems to have been entirely justified in ordering judgment absolute for plaintiff in Heller v. Cohen, 9 A. D. 465; but the court of appeals was so disturbed by that disposition of the case that it not only ignored part of the record and 41. Crane v. Evans, 18 Abb. N. C. 444. 42. Wadick v. Mace, 191 N. Y. 1, rvsg. 118 A. D.-777. 43. Coray v. Matthewson, 7 Lans. 80. 44. Moller v. Duryea, 21 W. D. 459. 45. Riggs V. Pursell, 74 N. Y. 370. 46. Dominick v. Michael, 4 Sandf. 374. 532 Practice. made some highly technical rulings on the rest, but it dismissed the complaint on the merits!*'' — although it was quite clear that plaintiff could on a second trial have filled in the gaps in evidence referred to in the opinion. A useful isuggestion for shortening litigation was made obiter in a recent court of appeals case as fol- lows : — The purchaser's principal objection was that the guardian ad litem was not disinterested and the appel- late division reversed on that ground. The court of appeals, disapproving such action, said nevertheless that the appellate division, if doubtful whether infants' rights had been protected, might have appointed an amicus curiae to investigate same, meanwhile vacating the sale.** § 744. Submission of Controversy. — Submission of controversy is an extremely advantageous method of bringing marketability questions before the court. It is a great economy to counsel, courts and litigants. Yet it has not geen greatly favored by the bench ; in fact at several different periods, including the present, it would seem that the courts have made a distinct effort to dis- courage it.*' They have, for instance, refused to answer the question submitted because infants might thereby be affected;^ and where defendant defaulted.^^ They have refused to allow amendment of the statement bj striking out an inadvertent conclusion of law, taking 47. 154 N. Y. 299. 48. Parish v. Parish, 175 N. T. 181, rvsg. 77 A. D. 181. 49. See for instance Leopold v. Heymann, 163 A. D. 16; Gilsow V. Schmidt, 156 A. D. 911; Des Case v. Stiles, 161 A. D. 871; Wal- grove V. Douglass, 166 A. D. 901. 50. Schreyer v. Arendt, 83 A. D. 335; Baumgrass v. Brickell, 7 S. R. 685. 51. Heasty v. Lambert, 98 A. D. 177. Costs. 533 tlie ground that it must be supported by evidence not disclosed.^^ An infant may not be a party to a submission.''^ The court will not pass on specific questions and give judgment according to stipulation. The whole contro- versy must be submitted, so that the court can give judg- ment as if in an action. It might be of opinion that the alleged liens, though invalid, constituted a cloud on titled* 7. Costs. § 745. Good Faith. — Although the action is brought at law for damages only, yet if defendant counterclaims for specific performance the costs will be within the discretion of the court.^ Where vendee's objections have been plausible and raised in good faith, he will not be charged with costs in an action for specific performance in which he is ordered to take title. ^ On the other hand he will not be awarded costs when after raising a technical objec- tion, which vendor proceeds promptly to remedy, he plunges at once into litigation.* 52. Fearing v. Irwin, 4 Daly, 385, affd. 55 N. Y. 486. The ad- mission was that title vested in D through a certain instrument set forth; and the court began its opinion by stating that D took no title thereunder. 53. Armstrong v. Wernstein, 6 Supp. 148. 54. Wood V. Squires, 60 N. Y. 191, rvsg. 1 Hun, 481; Doyle v. John E. Olson Realty Co., 132 A. D. 200. In the latter case (1909) the appellate division, first department, nevertheless discussed obiter the merits of the controversy. Perhaps this indicates a disposition to treat litigants more liberally. 1. Weinheimer v. Ross, 214 N. Y. 630. 2. Steinle v. Bell, 12 Abb. Pr. N. S. 171; objections to service by publication. 3. Baumeister v. Demuth, 84 A. D. 394, rvsg. 40 Misc. 22, affd. 178 N. Y. 630, without opinion; objection to appointment of guardian adr litem. 534 Costs. A vendor who tenders no abstract of title before clos- ing and takes no steps to remove an apparent encum- brance may not receive costs.* Where there was an ir- regularity in judicial proceedings, no costs were allowed to plaintiff on granting his motion to compel purchaser to complete.^ Where doubt was created by a supreme court decision on a novel question no costs of appeal were allowed by the court of appeals on reversal of judgment." Nor ^xere costs allowed on affirmance where "the questions pre- sented are not free from difficulty.'"^ It has been held that no costs will be awarded when the title is founded on adverse possession, because vendee is justiiied in exacting an adjudication thereon;** but it is not likely that the courts will adopt any hard and fast rule to that effect. Although vendor has removed the defects, he may not recover costs if the objections were valid on the clos- ing day.^ Costs may even be awarded to the unsuccessful party, Avhere he has not been remiss but his adversary has. A vendor who delayed closing for five years, but when suit was brought to rescind the contract offered to make good title, was allowed to do so, but costs were awarded to vendee.^" Similar is the case of a vendee who first claimed a defect because of an apparent breach of trust, but afterwards finding that the beneficiaries 4. Scott V. Thorp, 4 Edw. 1; Pangburn v. Miles, 10 Abb. N. C. 42; open mortgage. 5. Loring v. Binney, 38 Hun, 152, affd. 101 N. Y. 623 ; objection to service by publication. 6. Kip V. Hirsh, 103 N. Y. 565, rvsg. 53 Super. 1; question on assignment for benefit of creditors. 7. Buel V. Southwick, 70 N. Y. 581. 8. Brown v. Bell, 8 S. R. 894. 9. Rockwell v. Decker, 5 Civ. Pro. 62, aflfd. 33 Hun, 343 (on purchaser's appeal); Winne v. Reynolds, 6 Paige, 407 (dictum). 10. Pierce v. Nichols, 1 Paige, 244. Amount. 535 had ratified same, brought an action for specific perform- ance. He obtained a decree with costs.^^ Where the objection is merely technical, as that claims against decedent's estate are not barred, and the plaintiff in partition shows by affidavits that there probably are no claims, the purchaser may have a ref- erence if he desires, for further proof; but if the ref- eree decides against him he will be charged with costs.^2 A vendee who on the closing day without assign- ing any reason refuses to perform, will not be award- ed costs even if he successfully defends an action for specific performance on the ground of a substantial defect discovered later.^* § 746. Resale. — A purchaser in foreclosure was re- lieved because of an easement not mentioned at the sale and the premises were resold at a loss. No costs were allowed to complainant's solicitor on the motion to discharge the purchaser or on the order for resale, and the master was limited to costs of a single sale.^* § 747. How Charged. — On a successful motion for relief by a purchaser in partition, the costs were charged on the tenants in common who opposed in proportion to their interests in the premises.^® § 748. Amount. — ^Vendee who recovered only six cents damages because the premises were not worth the contract price was nevertheless awarded full costs.^® 11. Kahn V. Chapin, 84 Hun, 541, affd, 152 N. Y. 305. 12. Disbrow v. Folger, 5 Abb. Pr. 53. 13. Nicklas v. Keller, 9 A. D. 216. 14. Walworth v. Anderson, 4 Edw. 281. 15. Mahoney v. Allen, 18 Misc. 134. 16. Smith V. Eiggs, 2 Duer, 622. 536 Costs. Costs of a purchaser at judicial sale, although, he may apply for relief on petition, are motion costs and limited to § 749. Allowance. — The' services of an intelligent and careful attorney are necessary in an administra- tor's sale and may be charged, to the extent of a rea- sonable allowance, as an expense of conducting the sale.^^ But the surrogate has no power to allow coun- sel fee to an objecting purchaser.^* Nor can the court award either allowance or disbursements to a plain- tiff in partition who has been put to |600 expense to secure an adjudication compelling purchaser to com- plete.^" Expense of examining title has been granted to an ob- jecting purchaser at judicial sale under guise of an al- lowance for counsel fee.^^ This is properly an item of damage, as is compensation for delay, and is recoverable on general grounds of equity, without regard to the statutory limitations of counsel fees.^^ In an action on the contract of sale the successful vendee may be awarded an allowance of five per cent, of the amount of his recovery.^* § 750. Disbursements. — Expense of survey and ex- pert testimony may not be allowed as a disburse- ment.2* 17. Shriver v. Shriver, 24 Hun, 658. 18. Higbie v. Westlake, 14 N. Y. 281. 19. In re Campbell, Tucker, 240. 20. Eoarty v. MeDermott, 89 Hun, 511. 21. Shriver v. Shriver, 86 N. Y. 575. See also Muller v. Struppman, 6 Abb. N. C. 343; Mahoney v. Allen, 18 Misc. 134. 22. See Damages, § 713. 23. Moore v. Appleby, 108 N. Y. 237, affg. 36 Hun, 368. 24. German-American Real Estate Title Guarantee Co. v. Meyers, 32 A. D. 41. Brokee's Commission. 537 8. Brolcer's Commission. §' 751. Sales. — Defective title is no defense to a broker's claim for commission for effecting a sale of real estate. The broker has performed his contract by procuring a purchaser acceptable or ready, able and willing to take title, and it is not his fault if the sale falls through, because the principal's title is un- marketable.^ The nature of the defect is not material. The following have been unsuccessfully urged by ven- dors: — Outstanding lease,^ mortgage,^ restrictions,* covenant against tenements,^ encroachments," right of way,'' variation in dimensions.^ Sale of mortgage is within the same rule;® and so is sale of leasehold, even though the lease is not as- signable without the landlord's consent, which can- not be obtained.^" Exchange of real estate is on the same basis, so far as the principal's title is concerned." In regard to the title of the property submitted for exchstnge, the broker must produce a customer with marketable title ;i^ but after the principal and the third party have entered into a written contract, the broker has a 1. Gilder v. Davis, 137 N. Y. 504 (dictum) ; Cusaek v. Aikman, 93 A. D. 579; Cox v. Hawke, 93 Supp. 1117; Levy v. Ruff, 3 Misc. 147, affd. 4 Misc. 180; Strout v. Kenny, 107 Supp. 92; Tyler v. Seiler, 76- Misc. 185. 2. Knapp v. Wallace, 41 N. Y. 477. 3. Allen v. James, 7 Daly, 13. 4. King V. Knowles, 122 A. D. 414; Brown v. Helmuth, 21 S'jpp. 615. 5. Ranger v. Leo, 117 Supp. 927. 6. Scott v. Neuberger, 58 Misc. 22. 7. Smith V. Mooney, 14 W. D. 237. 8. Sokolski V. Bleistift, 129 Supp. 26. 9. Doty V. Miller, 43 Barb. 529. 10. Loffler v. Brestenstein, 19 W. D. 444. 11. Kalley v. Baker, 132 N. Y. 1. 12. Mutchnick v. Davis, 130 A. D, 417. 538 Broker's Commission. prima facie case, and the burden is on the principal to show uimiiarketability.^* § 752. Mortgages.— It is now settled that defective title is no defense where the broker was employed to procure a loan/* although it has more than once been questioned whether there ought to be any recovery un- less the transaction is completed. The reason urged is that there is no way for the principal to compel the third party to complete when the title is good, and hence he ought not to have to pay any commis- sion unless he gets his loan.^^ It seems more reason- able, however, to make the owner responsible for the damage resulting from defects in his title, rather than to permit the broker to suffer after performing his task in good faith. An executor employing a broker to secure a loan is individually liable for the commission where the len- der refused to complete because debts and specific legacies had been paid and no purposes of the will re- mained to be carried out.^^ § 753. Notice. — The broker must recognize an en- cumbrance created by the deed of the premises to, which he has been referred for identification of the land to be sold, unless the owner has represented that no such en- cumbrance exists. Whether such representation was made is a question of fact for the jury.^'' 13. Moskowitz v. Hornberger, 20 Misc. 558. 14. Holly V. Gosling, 3 E. D. Smith, 262; Crasto v. White, 3 Supp. 682; Putzel v. Wilson, 49 Hun, 220; Egan v. Kieferdorf, 16 Misc. 385; Einek v. Bauer, 40 Misc. 218; Steele v. Rumore, 117 Supp. 189; Dorlon v. Forrest, 101 A. D. 32; Hevia v. Lopardo, 127 A. D. 189 ; Gatling v. Central Spar Verein, 67 A. D. 50 (dictum) ; Smith V. Peyrot, 201 N. Y. 210. 15. Crasto v. White, 5 Supp. 718; Chambers v. Aekley, 91 Supp. 78. 16. Smith V. Peyrot, 201 N. Y. 210. 17. Lord V. Crane, 78 Misc. 389. Attorney and Client. 539 § 754. Pleading. — The familiar rule of pleading ap- plies in these cases, that plaintiff having alleged per- formance must prove it, and may not show an excuse for non-performance. '^^ § 755. Special Contracts. — The broker may by the terms of his contract preclude himself from claiming his commission, as where same was made payable when title passed and the contract of sale was cancelled be- cause of defects in the title. ^^ But a commission pay- able "at the closing of the title" was held payable on the law day, when the closing was adjourned to adjust defects.^" And where the commission was not to be paid in the event that the purchaser refused to take title, and the purchaser's objection was that the prem- ises were subject to three mortgages amounting to 135,000, instead of two amounting to |33,000, as agreed, the vendor is liable to the broker.-^ One case even goes so far as to hold that the phrase ' ' when title is passed " does not create a condition precedent, but only appoints a time; and that a commission pay- able then is earned although the title is rejected as un- marketable.^^ 9. Attorney and Client. § 756. Relation. — The duty of an attorney employed to examine title ends with his report. Notice to the attorney pending exa,mination, of facts affecting the title with liens or equities, is constructive notice to the purchaser; but where the claim is that a trustee 18. Gatling v. Central Spar Verein, 67 A. D. 50. 19. Couper v, O'Neill, 53 Misc. 319 (supreme court, N. Y. Co. app. term). 20. Morgan v. Calvert, 126 A. D. 327. 21. Freilich v. Tucker, 68 Misc. 318. 22. Meckes v. Mullen, 75 Misc. 303 (N. Y. city court, trial term). 540 Attorney and Client. fraudulently sold to a friend at an unduly low price, it must be made to appear that the attorney actually knew the relations between the trustee and such friend in order to establish the charge of notice.^ In the absence of express agreement an applicant for mortgage loan is not liable to pay the fee of the attorney employed by the person applied to, to ex- amine title; there is no general custom or usage to that effect.^ If such applicant entrusts to such at- torney money to discharge a lien, he thereby makes the attorney his own agent for that purpose.^ § 757. Approval of Title. — When closing of a real estate transaction depends upon approval of title by an attorney, such attorney has no right arbitrarily or capriciously to refuse to be satisfied with title.* Under such circumstances it is for the client to show bad faith. The attorney makes out a prima facie case in an action for his fee when he proves the con- tract and his services.^ § 758. Liability. — An attorney employed to examine title is liable for negligence in not reporting existing encumbrances;* and must make good the amount paid by his client after purchase to discharge same.'' A title insurance company has the same responsibility and the same liability.* 1. Anderson v. Blood, 152 N. Y. 285, affg. 86 Hun, 244. 2. Norwood v. Barealow, 6 Daly, 117; Brown v. Genet, 63 How. Pr. 236. 3. Josephthal v. Heyman, 2 Abb. N. C. 22. 4. Jay V. Wilson, 91 Hun, 391, afiEd. 158 N. Y. 693, on opinion below. 5. Title Guarantee & Trust Co. v. Wesolick, 115 A. D. 608. 6. Elder v. Bogardus, Lalor's Supp. 116. 7. Brown v. Schumaker, 8 W. D. 456. 8. Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10, affg. 89 Hun, 120. Negligence. 541 f Where the attorney upon an open question which has evoked opposite opinions from two judges of the court of appeals gives erroneous advice, his profes- sional skill is a question for the jury." His liability in treble damages under 2 E. S. 28;r, § 68, is limited to dishonest advice in existing litiga- tion; for other dishonest advice, though resulting in the client's bringing an unnecessary law suit, the client can only recover actual damages.^" 10. Negligence. § 759. Attorneys. — An attorney may be liable to his client for negligence in not advising him of encum- brances on premises under contract of purchase. In an action against the attorney upon that ground, such encumbrances should be pleaded with certainty.^ His liability extends to the amount necessarily paid by the client to discharge such encumbrances;- or to what the client lost on the purchase.^ It is negligent for an attorney not to join as parties in foreclosure the judgment creditors of a tenant by curtesy;* but not negligent to omit to require from a vendor on signing the contract an affidavit that there are no embarrassing liens.^ § 760. County Clerk. — A county clerk is responsi- ble for the failure of his deputy properly to index a Us pendens. Where an action was brought against 9. Bowman v. Tallman, 40 How. Pr. 1, a%. 2 Robt. 385. 10. Looff V. Lawton, 97 N. Y. 478, modifying 7 W. D. 217. 1. Elder v. Bogardus, Lalor's Supp. 116. . 2. Brown v. Sehumaker, 8 "W. D. 456. 3. Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10, affg. 89 Hun, 120. 4. Eeynolds v. Kaplan, 3 A. D. 420. 5. Livingston v. Spero, 18 Misc. 243. 542 Deceit. D J and M J his wife, with directions to index against all defendants, and the deputy clerk indexed not against M J by name, but only against D J and wife, the clerk is liable to a mortgagee who afterwards made a loan upon an official search showing clear title in M J and lost same when judgment was entered against her in said action.* But he is not liable on a search not made especially for the person injured.'^ 11. Deceit. § 761. — The deceit or collusion which makes an at- torney liable for treble damages is not dishonest gen- eral advice but only corrupt conduct in litigation. Where tenants in common were dishonestly advised that they must bring partition in order to make good title, their attorney was held liable for actual but not treble damages.^ A vendee whose rescission of the contract is based upon deceit, namely, fraudulent misrepresentation of the amount of rental, is not entitled to a lien for his deposit.^ A misrepresentation as to the existence of a remov- able encumbrance, such as a mortgage, gives no cause of action for deceit, for the vendor may be able to get it released.* But where such misrepresentation is made as part of a swindle by an attorney upon whose advice a mortgagee relied, it is sufficient ground for his disbarment.* 6. Hartwell v. Riley, 47 A. D. 154. 7. Day v. Reynolds, 23 Hun, 131. 1. Looff V. Lawton, 97 N. Y. 478, modifying 7 W. D. 217. 2. Goodman v. Schwab, 136 A. D. 583. 3. Epstein v. Rockville Centre Improvement Co., 164 A. D. 177. 4. Matter of Burlando, 165 A. D. 777; Matter of Thorn, 164 A. D. 151. Insurance. 543 12. Insurance. § 762. A title policy is a contract of insurance against defects in title, unmarketability, liens and en- cumbrances, and is designed to protect from defects affecting title when taken. It does not intend to insure against later encumbrances, and if inadvertently dated after the closing of the title insured may be re- formed.^ A search guaranteed as to all conveyances, unsatis- fied mortgages and other instruments of record cre- ates liability only for what appears on the record. It does not guarantee the actual facts nor protect against a forged instrument admitted to record.^ A search guaranteed to the applicant, his heirs, de- visees and grantees was held not to contemplate any liability beyond applicant's immediate grantee. An action by the second grantee based on an error in re- porting a lien was accordingly dismissed.^ It has become so much a matter of course for vendee to procure insurance of title that the court takes judicial notice of the custom. When therefore the contract calls for such title as an insurance company will approve and insure and vendor tenders market- able title, he prima facie fulfills his contract, and in the absence of actual disapproval by such title com- pany, may compel vendee to complete.* When how- ever the company does refuse, even capriciously and unreasonably, vendor does not fulfill his obligation by such tender;^ nor when the company will insure only conditionally and subject to an alleged encroachment.® 1. Trenton Potteries Co. v. Title Guarantee & Trust Co., 176 N. Y. 65, affg. 68 A. D. 636. 2. Ladd v. Title Guarantee & Trust Co., 188 N. Y. 616. 3. Glawatz v. People's Guaranty Search Co., 49 A. D. 465. 4. Eastman v. Home, 205 N. Y. 486, affg. 141 A. D. 12. 5. Allen v. McKeon, 127 A. D. 277. 6. Beinhauer v. Morris, 142 A. D. 398. 544 Registration. 13. Registration. § 763. Theory.— A complete system for the registra- tion by the state of titles to real estate is contained in sections 370-435 of the Real Property Law. Al- though it has been in existence since 1908 it has up to the present time been so little availed of that its effect on the law and practice of transferring title has been negligible. The general theory of the statute is to provide a cheap, simple and official method of demonstrating the ownership of land. That such a result can be at- tained is amply proved by the experience of several foreign countries and of British colonies operating under the Torrens system. In this country no signal success has as yet attended the various attempts to achieve such results. In several states the courts, taking a rather narrow and technical view of the subject, have pronounced important features of an effective registration .system unconstitutional. In others the system has not seemed to meet with great popular favor. In Massachusetts it has been reason- ably successful and is increasing in importance. In New York it has thus far been almost a dead letter. It is in fact so little understood by the public and the legal profession that its incidental advantages are scarcely known. For instance it provides a con- venient procedure for removing clouds from title; it makes a registered title immune from adverse posses- sion; it makes service by publication simple and ef- fective; and it makes title conclusive upon all the world against all claims except fraud within the brief period of six months, and even against fraud within ten years. These incidents added to the sound policy underlying the system seem destined to bring it event- ually into public favor. Up to the present time, how- ever, in spite of the provision in section 391 that no Registration. 545 title shall be registered unless free from reasonable doubt, tbe statute has added little to the practical law of marketability. The law provides for a proceeding in rem in the supreme court by the owner, vendee or holder of a power of appointment or disposal of land. The pro- ceeding is based upon an examination of title by an official examiner, whose certificate must show that the title owned, purchased or controlled by plaintiff is a good title in fee simple, and must also state all other persons who have or claim any right or interest in the premises. Notice of the proceeding must be given to all such persons, to the adjoining owners, to the state and to unknown claimants. The complaint must be accompanied by an official abstract, an offi- cial survey and a Us pendens. After trial of the is- sues raised by claimants, if any, judgment of registra- tion is entered if the title appears free from reasonable doubt; and thereafter the title is affected only by what appears on the registration, except that it may be vol- untarily withdrawn from registration, and perhaps in- directly withdrawn under a testamentary power of sale. Provision is also made for insurance against the fraud and errors of public officials. § 764. Practice. — Marketability of the title sought to be registered is a prime requisite. "The object and purpose of the law are to register good titles, not to cure bad ones;" and unless plaintiff's papers show good title it should not be registered.^ It is not vali- dated either by default of a defendant appearing to have a valid claim or by the examiner's certificate of good title.^ 1. Partenf elder v. People, 211 N. Y. 355, a%. 157 A. D. 462; Crabbe v. Hardy, 77 Misc. 1. 2. Barkenthien v. People, 213 N. Y. 554; Crabbe v. Hardy, 77 Misc. 1. 35 546 Registration. The Eegistration Act is constitutional.* Claimants must be named specifically and facts shown about them or efforts to find.* When any al- legation of the complaint is denied or controverted by facts affirmatively pleaded and defendant demands evidentiary proof, plaintiff must establish such allega- tion by evidence under the ordinary rules.^ The ex- aminer's conclusions must rest upon adequate proof. He must not draw any inference" from an allegation in an affidavit which appears upon its face to be out- side affiant's knowledge — as where affiant was only three years old at the date of the events described.^ The attorney general acts in part as amicus curiae, to prevent the registration of defective titles, and need not plead title in the state in order to be heard.'' 3. Barkenthien v. People, 212 N. Y. 36. i. Partenf elder v. People, supra; City & Suburban Homes Co. V. People, 157 A. D. 459; Belmont Powell Holding Co. v. Serial Building Loan & Saving Inst., 167 A. D. 124. 5. Barkenthien v. People, 212 N. Y. 36, affg. 155 A. D. 285 ; and see dicta in Voorbies v. Voorbies, 66 Misc. 78; Belmont Powell Holding Co. v. Serial Building Loan & Savings Inst., 167 A. D. 124. ■6. Meighan v. Eohe, 166 A. D. 175. 7. Meighan v. Rbbe, 166 A. D. 175. INDEX (References are to pages.) ABATEMENT AND REVIVOR. See Death. Page ABATEMENT OF CONSIDERATION 489-495 ABSTRACT OF TITLE 351, 393 ACKNOWLEDGMENT AND PROOF 415-417 ADMINISTRATOR 191-193 ADMINISTRATOR'S PROCEEDINGS 135-139 Citation . . . . .^ 136-13S Jurisdiction 133-135 Petition 135 Special Guardian 138 ADVERSE CLAIM 425, 432-437 ADVERSE POSSESSION 231-241 Claimant 234-237, 239 Entry 233 Evidence 237-239 Time 232 AFFIDAVIT 344 AGENT 259 ALIEN 253 AMENDMENT 109 ANCIENT DOCUMENT l 352 ANSWER 106 APPEAL 446 APPEARANCE 105 APPELLATE COURT 531 APPROVAL 11, 540 ARBITRATION 510 ASSESSMENT. See also Tax 40, 295-298 Apportionment 297 Confirmation 297 ASSIGNMENT FOR BENEFIT OF CREDITORS 145-147, 432 ATTORNEY AT LAW; Approval of Title 540 Authority 102 Liability 540-542 Relation to Client 539 ATTORNEY IN FACT 258 AUCTION 67 AUCTIONEER 260, 310, 431 (547) ^48 Index. Page BANK, LIQUIDATION OF 149, 291 BANKRUPTCY 147-149 BAY WINDOW 336 BENEFICIARY 264 BILL OF PARTICULARS 527 BOIfA FIDE PURCHASER 371, 382 BOUNTY LAND 157 BROKER'S COMMISSION. Mortgage , 538 Notice 538 Pleading 539 Sale 537 Special Contract 539 BUILDING 271 BURDEN OF PROOF 339-343 CAVEAT EMPTOR 49, 481 CHAMPERTOUS DEED 394 CHARGES, TESTAMENTARY 309 ■CLEAR RECORD TITLE 10 ■COMPLAINT 106 CONDEMNATION 159, 3U CONDITION. Precedent 324 Subsequent 324-326 CONSENT 196 CONSIDERATION 197 CONSTITUTIONAL LAW 37-41 CONTRACT. See also Death; Demand; Readiness; Tender. Covenants of. See Covenants. Divisible 43, 67 Intent of Parties • 42-44, 367 Lien 310 Merger 48 Performance 46 Waiver 49 CORPORATION. Business 266 Dissolution 268 Foreign 35, 266, 268, 357 Membership 268 Municipal 157 Private : 265-268 Religious 66, 207 Ultra Tires 268 Index. 549 COSTS. Page Allowance 536 Amount 535 Disbursements 536 Good Faith , 533-535 How Charged 535 Improper Ill Resale 535 COUNTY CLERK 541 COURT. See Jurisdiction. COVENANTS OF CONTRACT. Independent . 49 Mutual 51 COVENANTS OF DEED 311-324 Action on 508 Creation 311 Dwellings 318 Extinguishment 321-324 .Nuisances 316-318 Personal 313 Running with Land 314 Space 320 Structure 319 CREDITORS. See Descent; Devise. CURING DEFECTS. Acceptance of Proceeds 458 Acquiescence . 457 Completing the Record 451 Corrections 452-456 Deeds 455-457 Legal Proceedings 462, 480 Opportunity to Remove 448-451 Time 459-462 DAMAGES 510-525 Actual 510, 520-522 Deposit and Expenses 512-517 Exchange 522 Full 519 Judicial Sales 511 Liquidated 524 Nominal : 510 Value 517 DEATH. Defendant ■ 117 Escrow 67 Plaintiff 97, 117 550 Index. DEATH— ( Continued ) . Page Presumption of 363-366 Vendee 59, 66 Vendor 60, 65 DECEIT. See also Fraud 542 DECREE. See Judgment. DEED. Acknowledgment and Proof 415^17 Consideration 398 Delivery 418 Description 399-414 Estoppel : 446 Execution 417 Form 395-397 Habendum 414 Parties .^ 397 Seal iU DEFICIENCY 419-423 DEMAND 55, 64 DESCENT. Creditors 163 Half Blood 163 Heirs 162 DE8GRIPTI0 PEBSONAE 257, 397 DESCRIPTION. Clerical Errors 400-403 Discrepancy 410 Highways 405-410 Metes and Bounds 410-414 Monuments 403-405 Shore 409 Sufficiency '. 399 DEVISE. After Acquired Realty 165 After Born Children 166 Charge of Legacies 167 Creditors 164 Election 170 Executory 170 Lapse 166 Probate 165 Void 167 Wills 167-170 DISABILITY, PERSONS UNDER. Sale of their Real Estate 38 Service of 78-81, 85 Index. 551 Page DOUBTFUL QUESTION OF FACT. Defined 13 Insufficient Evidence 18 Mere Possibility 15-17 Parol Evidenae 20 DOUBTFUL QUESTION OF LAW. Conflict of Opinion 29-31 Defined 22-24 Interests Not Represented 26 Judicial Discretion / 28 Novel Question 28 Pure Question of Law 24, 171 DOWER. See also Husband and Wife; Relief. Admeasurement 132 Election ' 251 - Extinguishment 252 Inchoate 249 Partnership Property 265 Release 250, 396 Trustee's Wife 204, 250 Vested ^ 24S DUE PROCESS OF LAW ' 39 _ EASEMENT 272-276 Beam Right 235 Elevated Railroad 276 Light and Air 275 Right of Way 275 Support 274 EJECTMENT 509 EMINENT DOMAIN. See Condemnation. ENCROACHMENT 327-338 Common Ownership 333 Materiality 327-333, 335-338 Street 334 Survey 330 EQUITABiLE CONVERSION. See also Power of Sale. .171, 182, 223, 231 ESCHEAT. See also Alien. Escheat Act 39, 157 Heirs. Death Without 160 ESCROW 67, 326 ESTOPPEL. Deed 446 Judgment 437-446 Pais, In 447 552 Index. Page EVIDENCE. See also Notice; Presumption. Admissions 352 Adverse Possession 237-239 Ancient Documents 352 Burden of Proof 339-343 Contemporaneous Acts 345 Custom 353 Foreign Law 353 Parol 343-345 Pedigree 350 Recitals ' 346-349 Records 349 Sufficiency of. See Doubtful Question of Fact. EXCHANGE 142, 186, 209, 508, 522 EXECUTION 150, 509 EXECUTOR. Foreign 195 Fraudulent Conveyance 435 Letters Testamentary 191 Removal 189, 260 Renunciation 190, 260 EXECUTOR'S PROCEEDING. See Administrator's Proceeding. EXECUTORY DEVISE 170, 216 FEE SIMPLE 42,47 FIDUCIARY. See also Trustee, etc 484 FIRST CLASS TITLE 11 FIXTURE 49, 271 FORECLOSURE. Action 124-130 Advertisement, By 131 Courts 124 Liens 130 Mechanics' Liens 132 Mortgage 124-131 Parties ■. 125-129 Reference 129 Tax Liens 131 Unmarketability as Defense 482 FOREIGN LAW ■ 3, 353 FRAUD. See also Deceit 426-432, 519 GIFT ■■ Ifrl GOOD FAITH. Costs 533-535 Damages 515 Notice 371, 382 Power of Sale 194, 200 Index. 553 Page GOOD TITLE : 10 GUARDIAN AD LITEM. Anawer 109 Appointment 107, 109, 122 Fraudulent Conveyance 430 Qualifications 108. GUARDIAN, GENERAL 260, 430 HEIR. See Descent; Remainder. HIGHWAY 36, 41, 276-284 Abandonment 280 Dedication 27,9 Intent of Grantor 276-278, 405-409 Maps .' 281-283 Municipal Proceedings 278-280 Particular Roads ' 283 Prescription 279 HUSBAND AND WIFE 36, 247-253 Curtesy • 247 Divorce 253 Dower 248-253 Separation 253 IDEM 80NAN8 394 INCOMPETENT 78 INFANT. Deed of 246 Service upon 79, 85 INFANT'S PROCEEDINGS 139-148 Jurisdiction 139 Petition 141 Special Guardian 141 INJUNCTION 509 INSANITY : , 245 INSURABLE TITLE 11 INSURANCE 12, 543 ISSUE 220 JOINDER OF ACTIONS 527 JOINT TENANTS 256 JUDGMENT. Collateral Attack ' 446 Contents : 112, 531 Entry 112 Estoppel 437^46 Lien ' 147, 289-291 JUDGMENT CREDITOR'S SUIT 133 554 Index. Page JUDICIAL SALE. Actions and Proceedings 76 Appeal Pending '. 75 Closing Title 486 Conduct of Sale 74 Conveyance 76 Damages 511 Demand 76 Exceptions 75 Protection to Purchaser 73, 499-501 Revenue Stamps 76 Title Offered 69-73, 374 Vendor 499, 501-503 OrUKISDICTIOK Actions and Proceedings 99 County Court 124 Court of Appeals 475 Court of Claims 160, 477 Inferior Courts 476 Surrogate 133, 475 KNOWLEDGE OF DEFECT 43, 366-372 LACHES 459-462 LAND OUTSIDE STATE 2, 475 LAW AND EQUITY 478 LEASE. See also Tax Lease. Consent 287 Encumbrance 286 Renewal 287 Sale of 45, 285 Tenancies 288 LICENSE ; 288 LIEN. See also Assessment ; Judgment; Mortgage; Tax. Miscellaneous 307-311 Partition 128 Vendee's. See Vendee's Lien. hm PENDENS. Constructive Notice 102 Effect on Title 435-437 Form 103 Vendee's Lien 508, 525 LITIGATION. Existing 434 Probable 7 9 LOCAL AND PRIVATE ACTS 39 LUNATIC 245 LUNATIC'S PROCEEDINGS I44 Index. 555 Page MANDAMUS 509 MARKETABILITY. Adjective Law 1 Adverse Possession 231 Definition 4 MECHANIC'S LIEN 132, 307 MERGER 161, 322, 390 MINE 269 MONUMENT 403-405 MORE OR LESS 422 MORTGAGE. See also Foreclosure 299-306 Ancient 301 Bond 306 Deed as 305 Discharge 302 Open 299 Terms 303-305 MORTGAGEE IN POSSESSION 255 MUNICIPAL GRANT 41, 157 MUNICIPAL LIEN 307 MUTUAL MISTAKE 484 NAME 394 NEGLIGENCE 541 NOTICE. Actions and Proceedings 1 10, 113 Bona Fide Purchaser 382 Constructive 376-383 Judicial Sale 374 Knowledge of Agent 375 Knowledge of Defect 366-372 Lis Pendens 102, 380 Possession 374 Record 374, 376-382 Visible Defects 372 NUISANCE 316-318 NUNC PRO TUNC 453-455 OBLIGATION OP CONTRACTS 40 OBJECTION. Court, Notice by 468 Curable Defects 471 Duty 464 Evidence : 472-475, 530 Form 465 Party 467 Time 466 Waiver 469-471 556 Index. Page PARK 284 PAKOL EVIDENCE -. 20 PARTIES. See also Foreclosure; Partition. Necessary 100 Representation 100, 120 State 101 PARTITION. See also Voluntary Partition. Guardian A.d Litem 122 Liens 123 Parties 119-122 PARTNERSHIP 264, 290 PARTY WALL 336 PATENT 156 PERFECT TITLE 11 PERPETUITY. Effect 230 Lives 227-230 Personalty i 231 ■Separable Provisions 206 Years 226 PLEADINGS 525-527 POSSESSION. See also Adverse Possession. .272, 283, 374, 423-426, 483 POSSIBILITY, MERE 15-17 POWER OP APPOINTMENT .' 203 POWER OF CONVEYANCE 204 POWER OF DEVISE 201-203, 224 POWER OF LEASE .- : 200 POWER OF MORTGAGE 200 POWER OF SALE. Application of Proceeds 199 Charges 180-182 Consent 196 Consideration 197 Construction ._, 171-179 Discretionary 183, 187, 188, 192 Equitable Conversion 182 Exercise 186-194 How Executed 195-198 Implied 179 Invalid 184 Reconversion 198 Reinvestment 194 Sale 185 Termination 199 Trust 184, 209 PRAOTIOAL LOCATION 241-244 Index. 557 Page PRESUMPTION 354-366 Continuity 362-366 Death 363-366 Decedents 359 Life 363 Payment 301, 361 Real Estate 360 Regularity 356-359 PROCESS. Amendment 105 Form 104, 137 PROMISSORY NOTE 483 PROOF 529 PUBLIC OFFICER 35 PUBLIC POLICY 35 QUESTION. See Doubtful Question of Fact; Doubtful Ques- tion of Law. QUITCLAIM 42, 45, 396 RATIFICATION 457-462 READINESS , 56, 61-64 REASONABLE DOUBT 6, 8-10, 72 RECEIVER 145, 149, 260 RECORD. Aiiflientication 390-392 Constructive Notice 376-379 How ,Far Required 385-390 Recording Acts 384 REFEREE 483, 489 REFERENCE 530 RBOISTRATION OF TITLE 38, 544-546 RELIEF 47T-495 REMAINDER. After Born 221-223 Contingent ■ 213-215 Equitable Conversion 223 Estate Tail 219 Executory Devise 216 Issue 220 Remaindermen 36, 255, 290 Siielley's Case 223 Subject to be Divested 217-219 Subject to Open 219 Vested 211-213 558 Index. REMAINDER— ( Continued ) . Page Void 224 Wilis 224-226 REMEDY 495-510 REPRESENTATION 100, 120, 443 RESCISSION : 503-506 RESTRICTION. See Covenant of Deed. REVENUE STAMPS 76 RIGHT, TITLE AND INTEREST 46, 65, 69 RULES OF PRACTICE 118 SALE, JUDICIAL. Conduct of 114-116 Notice of 113 Parcels 115 Report : 116 Terms 114 SALT LEASE 157 SATISFACTORY TITLE 10 SEAL 414 SERVICE OF PROCESS. Affidavits 92 Due Diligence 91 Incompetents 78 Infants 79-81, 85 Mailing 96 Non-Residence 88-91 Notice 97 Order 94 Proof of '. . ; Ill Publication 85-99 Substituted 84 Summons 98 Unknown Persons 81-84 Unknown Residence 87 SHORE 409 SOCIETY 265 SPECIFIC PERFORMANOE 495-499 STARE DECISIS 33 STAinjTE, TRANSFER OF TITLE BY 160 STAY . .- 528 SUBMISSION OF CONTROVERSY 532 SUMMONS. See Process. SUPPLEMENTARY PROCEEDINGS 145 SURPLUSAGE 419 SURROGATE. See Administrator's Proceedings; Jurisdiction. SURVEY 330 Index. > 559 TAX. See also Asseaament. Page Certificate 154 Foreclosure of Lien 131 Lease 45, 46, 152 Lien 292-295 Redemption 154 Sale 151-155, 310 Search 394 Transfer Tax 295 TENANTS BY THE ENTIRETY 257 TENANTS IN COMMON 258 TENDER. Excused, When 56-59 Necessary, When 52-56 Sufficiency of 59-61 TENEMENT HOUSE ACT 149 TIME. See also Adverse Possession; Practical Location 459-462 Essence, Of the 485-489 .ludicial Sale 486 Laches 459-462 TRIAL 528 TRIFLING DEFECT 31-33 TRUST. Charitable 208 Creation 204 Power 210 Precatory 205 Termination 210, 263 Undefined 205 Void 206 TRUSTEE. Acting 261 /Appointment 208, 261 Death 263 Fraudulent Conveyance 430 Renunciation 190, 261 Sale 262 Substituted : 188, 193, 262 Successor , 188 Survival 261 Unauthorized Acts 263 TRUSTEE'S PROCEEDINGS 143 UTSTBORN PERSON. See also Parties 255 UNKNOWN PERSON 81-84 560 Index. VAiiUE. Page Damages 517 Impairment of ,. 7,9 VENDEE'S LIEN .' 61, 506-508, 542 VENDOR'S LIEN 508 VOIDABLE 428-432 VOLUNTARY PARTITION 68, 186 WAIVER r 469-471, 505 WARRANTY. Estoppel 446 Express 43, 47, 48 Implied 44 WATER, LAND UNDER 270 WATER RENT 299 WATERCOURSE 269 WILL 167-170 WRITTEN INSTRUMENT '. . . . 15, 25