« ForrigeFortsett »
October 1, 1880, as security for the perform-J of the premises for an additional term, either ance of said contract; which demand the de- for the benefit of the defendant or of the fendant refused to comply with, but offered plaintiff, or at all. No such agreement is althe plaintiff $100 in discharge of further leged in the complaint; and the trial court sums due upon said contract, or offered to has found there was no such agreement, in submit their differences to an arbitration. fact. The plaintiff is therefore compelled to These offers the plaintiff declined, and insist- rely, for the existence of the fiduciary relaed upon his demand. The plaintiff, in March, tions which he invokes to give him the right 1882, tendered to the defendant the rent to the renewal lease between the defendants which he had paid under the new lease, with Ramsdell and Dix, upon the contract of sale interest thereon, which tender the defendant and purchase. Now, it seems to me that the declined to accept. The action was com- relation created between plaintiff and defend. menced June 20, 1882. The trial judge found, ant Ramsdell by virtue of that contract are as conclusion of law, that at the date of the not at all those of landlord and tenant, or of contract, February, 1879, the plaintiff had trustee and cestui que trust, but are those, no leasehold interest in the land at the date or are analogous to those, which exist beof the execution of the contract, and trans-tween vendor and vendee. By the express ferred no estate to the defendant Ramsdell, terms of the contract, the plaintiff agrees to and that the plaintiff is unable to transfer to sell to the defendant Ramsdell all the forthe defendant the leasehold which he con- mer's “right, title, and interest to the premtracted to sell; that no fiduciary relations ex- ises embraced in the old lease, or original isted between the parties to this action in lease.” Said "interest consists of a leaserespect to the lease of May 1, 1816, the hold purchased by and assigned to the deoriginal lease, or the lease of October 1, 1880; fendant Ramsdell, upon payment of $800” in that the plaintiff is not entitled to a judgment installinents, with interest. Said Ramsdell declaring the lease of October 1, 1880, a re- was also to pay the rent reserved in the orignewal of a lease of 1816, or that the defend- inal Morgan lease to plaintiff; and, upon ant held it as trustee for the plaintiff,—and payment of said purchase money, the plaindirected a judgment in favor of the defend- tiff agreed to execute and deliver an assignant Ramsdell against the plaintiff, dismissing ment of the original (Fenner) lease to the the complaint in this action, with costs, and defendant Ramsdell. This was but a con. also a judgment against the defendant Dix, tract by plaintiff to sell, and by Ramsdell to but without costs.
purchase, plaintiff's right, title, and interest John G. Gibson, for appellant. Henry T. under the original lease. When this conUtley, for respondent Rainsdell. Loton s. tract shall have been executed, it will be simHunt, for respondent Dix.
ply a quitclaim deed, without any covenants.
Thus, it appears there were no covenants crePOTTER, J., (after stating the facts as ating fiduciary or confidential relations; and above.) We do not deem it necessary, in dis- the true relations, as it seems to me, are those posing of this appeal, in view of the very able which spring from the relation of vendor and opinions delivered by the special and general vendee. From this relation, the plaintiff terms of the court below, to enter into a very claims that he is entitled to the second or refull or elaborate discussion. The judgment newal lease; or, in other words, that the deof the court below might well be affirmed up: fendant Ramsdell was, in taking the new on the views presented in those opinions. It lease, the plaintiff's trustee or agent, and was held, upon a consideration of the facts made the new lease for the benefit of the found by the learned trial court in this ac- plaintiff. I do not think the defendant Ramstion, that there were no confidential, fiduci-dell owed the plaintiff any allegiance or duty ary, or trust relations between the plaintiff of that character. In Watkins v. Holman, and the defendant,--at least, none that should 16 Pet. 54, it is said by the court, in discuss. require the defendant to assign to the plain- ing such relations, that “the relation of landtiff the lease the defendant Ramsdell entered lord and tenant in no sense exists between into with the defendant Dix, as security for vendor and vendee." Osterhout v. Shoethe installments owing to plaintiff under the maker, 3 Hill, 513-518: "He [the grantee) contract of purchase and sale, as demanded takes the land to hold for himself, and to disby plaintiff. The appellant's counsel has pose of it at pleasure. He owes no faith or cited upon his brief a large number of cases allegiance to the grantor; and he does him no establishing and illustrating relations of wrong when he treats him as an utter trust and confidence between partners, les- stranger to the title. sees, executors, and trustees. I have exam It has been often held that the grantor in ined most of the cases referred to, and they fee may purchase in an outstanding or hosdo not hold or determine, as it seems to me, tile title to his grantor, and fortify his own that the relations between the plaintiff and defective title, and thus make good to himdefendant, under the contract between them self what his grantor's deed, with its covefor the sale and purchase of the premises, are nants, failed to do. Kenada v. Gardner, 3 of that character.
Barb. 589. Was it ever claimed that a granIn this statement, I assume there was no tor under a deed containing the fullest coveagreement, express or implied, that the de- nants, but which conveyed no title to him fendant would apply for or take a new lease because the grantor had none, could be con
pelled to give the title which such grantee he entered into the possession of the premises. had purchased from another to his grantor, That relation is based upon the principle of who took his money, but gave him nothing estoppel in the one case, and in the other for it? Or, to state a case more nearly re- upon the principle that a party cannot rescind sembling the case under consideration, that his contract without restoring what he has a grantor who had no title, and so con veyed received under it, viz., possession. When, to his grantee none, might nevertheless com- however, either the tenant or such vendee pel such grantee to convey to him the title he has surrendered his possession, he may conpurchased of another, so that the grantor test his landlord's or bis vendor's title, in an might have good security for the payment of action of ejectnient, by showing a better tia mortgage which the grantee had given to tle, derived from another, or by any other lehis grantor, to secure the purchase money, gitimate defense. But that principle is not but whose deed conveyed nothing to the gran- involved in this case. The action is brought, tee? It was found, and not disputed—in- not to recover the possession of the premises deed, it was alleged in the complaint—that contracted to be sold, but mainly to compel at the time the plaintiff assumed to contract the defendant to assign to the plaintiff the to sell the premises to defendant the former rights which the defendant acquired under lease had expired; and that there was no le- the new lease, to the end that plaintiff may gal right in the lessee or assigns to compel a hold and wield it as security for the payment renewal; and that the renewal depended up of the purchase price of plaintiff's interest on the option of the lessor, and that option under the expired lease.. This is the equidepended upon such terms, as to the amount table relief sought by the plaintiff in this acof rent and character of the lessee, as should tion, and I do not think he has shown himsuit the landlord, though preference was gen. self entitled to it. The judgment should be erally given the tenant in possession, if he atfirmed, with costs. All concur, except had the qualifications, and would assent to FOLLETT, C. J., and HAIGHT, J., not sitting. the terms dictated by the landlord as to the
(117 N. Y. 439) amount of rent and duration of the term of
WOOD 0. MITCHELL.1 the new lease. If any duties spring from a contract in these circumstances, I should ex
PARKINSON 0. MITCHELL. pect that one of them would be that the ven- (Court of Appeals of New York. Dec. 3, 1889.) dor who held the lease, and must have known
STATEMENT FOR JUDGMENT BY CONFESSION. that it had expired, or nearly so, and had Under Code Civil Proc. N. Y. $ 1274, which sold it for $800, should himself have under- provides that a statement for judgment by contaken to have it renewed. But, if the ven- fession must state concisely the facts out of which dor was not disposed to do this, he should, at debt is a balance due plaintiff of various sums.
the debt arose, a statement that recites that the least, have reminded his vendee, who had no loaned and advanced by him to defendant during a knowledge, or means of knowledge, at hand period of nearly two years is too indefinite to supas to the termination of the lease, and should port a judgment. have induced the defendant, the vendee, to Appeal from supreme court, general term, procure the renewal of the lease. But the first department. plaintiff took no agreement from the defend James C. Bergen, for appellants. Everett ant to do so, but waited until the defendant D. Barlow, for respondents. had obtained a new lease, at a rent more than
EARL, J. The Code (section 1274) prodouble that of the old lease, and for a term vides that the written statement upon which of only 10 years, and then demanded that the a judgment by confession may be entered, if defendant should assign it to him, to secure the judgment to be confessed is for money the payment of the purchase price.
due or to become due, “must state concisely I am not unaware that there is a class of the facts out of wbich the debt arose;" and cases, from which the appellant has collected this was also the requirement of the Code of a large number, where the renewal of a lease Procedure, (section 383.) It is claimed on beupon the same terms will be held for the bene- half of the moving party here that the statefit of a mortgagee of the first leasehold es. I ment upon which the judgment assailed was tate, or one partner has obtained a renewal entered does not comply with this requirein fraud of the rights of his copartner, under
ment. It is as follows: "This confession of certain circumstances. The reason of the judgment is for a debt now justly due to the rule in the case of a mortgagee is because in said plaintiff from me arising from the folthe mortgage it was covenanted, or the law lowing facts, viz.: The said sum of $5,000 is implied a covenant of title, and thereafter a balance due to said plaintiff of various sums the mortgagor would be estopped from claim- of money loaned and advanced by him to me, ing that the title he had expired. But these the said defendant, during a period from principles are not applicable to this case.
about July 1, 1886, to date, and includes inIn am not unmindful, in the expression of terest upon such loans and advances to this these views, that in one respect the relation date." between vendor and vendee entering under a contract to convey is analogous to the rela- the Code of Procedure and section 1274 of the
Many decisions construing section 383 of tion between landlord and tenant, and that is present Code have been made. But no dethis: that peither the tenant nor such vendee will be heard to deny the title under which 1 Reversing 6 N. Y. Supp. 948, mem.
cision has come to our attention holding that, CROOKED LAKE NAv. Co., Respondent, v. such an indefinite and deficient statement as
KECKA NAv. Co., Appellant. the one here is sufficient. The concise state- (Court of Appeals of New York. 1889.) ment of facts out of which the indebtedness
Wm. T. Morris, for appellant. Win. M. arose is required, so that any party interested
Johnson, for respondent. may be able to investigate the matters, and thus ascertain whether the confession of judg-costs. All concur.
No opinion. Judgment affirmed, with
See 43 Hun, 635. ment was arcurate, honest, and bona fide. It may also be supposed that it was the purpose of the legislature that the statement of JONES, Appellant, v. MAYOR, ETC., OF NEW facts should be so definite that the affiant would be exposed to punishment for perjury Court of Appeals of New York. Oct. 8, 1889.)
YORK, Respondent. in case of any misstatement. This state-|(Court of Appeals of New York. ment is in the highest degree indefinite. The
Alex. Thain, for appellant. David J. moneys'are alleged to have been loaned at Dean, for defendant. various times during a period of nearly two
No opinion. Judgment affirmed, with years. There is absolutely no information costs. All concur. See 3 N. Y. Supp. 946. as to the amount of the loans. They may have amounted to $10,000 or $100,000, the indebtedness having been reduced by pay
WILLIAMS et al., Respondents, 0. WALKER ments or offsets to less than $5,000. No
et al., Appellants. dates of the loans are given, and it is not (Court of Appeals of New York. Oct. 8, 1889.) stated how much of the $5,000 was for inter John R. Dos Passos, for appellants. Thos. est, and how much for principal. The state- Jackson, for respondents. ment should at least have stated the interest
No opinion. Judgment affirmed, with and principal separately, or have given the costs. All concur, except GRAY, J., not votdata from which the amounts of the two ing. See 44 Hun, 628. items could be ascertained. If this statement should be held sufficient, the statutory requirement would be substantially nullified. PEOPLE, Respondent, v. RICKER et al., ApWe are therefore of opinion that the orders
pellants. of the general and special terms should be (Court of Appeals of New York. Oct. 8, 1889.) reversed, and the motion granted, with costs
Benj. W. Downing, for appellants. John to the appellant of appeal to the general term Fleming, for the People. and to this court, and $10 costs of the mo
No opinion. Judgment affirmed. All tion. All concur, except DANFORTH and concur. "See 4 N. Y. Supp. 70. PECKHAM, JJ., not voting.
OWENS, Respondent, v. CROMWELL, Appel
lant. In re SPIER et al., Freeholders of Town of Moreau.
(Court of Appeals of New York. Oct. 8, 1889.)
M. H. Hirchberg, for appellant. M. N. (Court of Appeals of New York. Oct. 8, 1889.) Kane, for respondent.
L. B. Pike, for appellants. M. A. Shel No opinion. Judgment affirmed, with don, for respondents.
costs, on opinion below. See 44 Hun, 627. No opinion. Order affirmed, with costs, on opinion below. All concur. See 3 N. Y.
MCDERMOTT, Appellant, 0. THIRD AVE. R.
(Court of Appeals of New York. Oct. 8, 1889.) SECOR et al., Appellants, v. CLARK, Re
Edward T. Wood, for appellant. Wm. H. spondent.
Page, Jr., for respondent. (Court of Appeals of New York. Oct. 8, 1889.) No opinion. Judgment affirmed, with Horace Secor, Jr., appellant, pro
costs. All concur, except DANFORTH, J., George W. Cotterill, for respondent.
not voting. See 44 Hun, 107. No opinion. Judgment affirmed, with costs. All concur.
CHADWICK, Respondent, v. BURROWS et al.,
Appellants. RABER, Appellant, v. LOUGHRAN, Respond- | (Court of Appeals of New York. Oct. 8, 1889.) ent.
Geo. Wing, for appellants. A. K. Potter,
for respondent. (Court of Appeals of New York. Oct. 8, 1889.)
No opinion. Appeal dismissed, with costs, Charles J. Buchanan, for appellant. Jo on the ground that the judgment appealed seph A. Burr, Jr., for respondent.
from and the sole matter in controversy, exNo opinion. Orders affirmed, with costs. cluding costs, is less than $500. All concur, All concur. See 44 Hun, 628.
except FINCH, J., absent. See 42 Hun, 39.
GARVEY, Respondent, v. OWENS et al., Ap
VAIL 0. VAIL. pellants.
(Court of Appeals of New York. Oct. 15, 1889.) (Court of Appeals of New York. Oct. 8, 1889.)
J. H. Dougherty, for the motion. R. E. Robinson, for appellants. Geo. C. No opinion. Motion to dismiss granted, Genet, for respondent.
with $10 costs. See 5 N. Y. Supp: 872. No opinion. Judgment affirmed, with costs. All concur. See 44 Hun, 630.
HUGGUNS, Appellant, v. RILEY, Commission
er, Respondent. RYAN et al., Respondents, v. ELEPHANT BLDG. Co., Appellant.
(Court of Appeals of New York. Oct. 15, 1889.) (Court of Appeals of New York. Oct. 8, 1889.) with costs. See 4 N. Y. Supp. 282.
No opinion. Motion to dismiss denied, J. Hampden Dougherty, for appellant. Wm. D. Page, for respondents.
No opinion. Judgment atfirmed, with In re WATER COM’RS OF AMSTERDAM, Apcosts. All concur. See 45 Hun, 589.
pellants, 0. COLLINS et al., Respondents.
(Court of Appeals of New York. Oct. 15, 1889.) In re Accounting of NILES.
M. L. Stover, for appellants. John M.
Carroll, for respondents. (Court of Appeals of New York. Oct. 15, 1889.)
No opinion. Motion to open default deMotions to amend remittitur, etc.
nied, with costs. Chas. Lyons, Jr., and Merritt E. Sawyer, for respondents.
No opinion. Both motions denied, with BEAL, Appellant, v. NEW YORK CENT. & $10 costs in each motion.
H. R. R. Co., Respondent.
(Court of Appeals of New York. Oct. 15, 1889.) RIKER, Respondent, v. LEO, impleaded, Ap
Motion to transfer to first division. pellant.
No opinion. Motion granted; case recalled,
to be put at the head of general calendar. (Court of Appeals of New York. Oct. 15, 1889.)
Motions to amend remittitur, etc.
Louis Marshall, for the motion. John E. In re Application of NEW YORK, L. E. & W. Parsons, for appellant.
Ry. Co. to Appraise Lands of ABRAM M. No opinion. Motion for reargument de CHESBROUGH et al. nied, and remittitur amended so as to granta
See 21 N. new trial; costs to abide event.
(Court of Appeals of New York. Oct. 22, 1889.) E. Rep. 719.
E. Countryman, for appellants. F. D. Locke, for respondent.
No opinion. Appeal dismissed, with costs. WORTMAN et al., Respondents, v. ROBIN All concur. See 6 N. Y. Supp. 766.
SON, impleaded, Appellant. (Court of Appeals of New York. Oct. 15, 1889.) Motion to amend remittitur, etc.
CLARK, Respondent, 0. CLARK, Appellant. No opinion. Motion granted, on payment (Court of Appeals of New York. Oct. 22, 1889.) by the appellant of all costs subsequent to E. P. Wilder, for appellant. T. B. Wakethe serving of the demurrer.
man, for respondent.
NAN, Appellant. (Court of Appeals of New York. Oct. 15, 1889.) In re Petition of BRAINERD to Vacate an No opinion.
Assessment. granted, without costs.
(Court of Appeals of New York. Oct. 22, 1889.)
Jas. A. Deering, for appellant. G. L. COHEN, Appellant, v. MOREHOUSE et al., Sterling, for respondent. Respondents.
No opinion. Order affirmed, with costs. (Court of Appeals of New York. Oct. 15, 1889.) | All concur. See 1 N. Y. Supp. 78.
No opinion. Motion to open default granted, without costs.
MCBRIDE, Respondent, 0. MCBRIDE, Ap
pellant. CURTICE, Respondent, v. WEST, Appellant. (Court of Appeals of New York. Oct. 22, 1889.) (Court of Appeals of New York. Oct. 15, 1889.) Preston Stevenson, for appellant. W.
S. D. Bentley, for the motion. Horace L. Bourke Cochrane and Saml. G. Adams, for Bennett, opposed.
respondent. No opinion. Motion to dismiss denied, No opinion. Appeal dismissed, with costs. with $10 costs.
All concur. See 5 N. Y. Supp. 388.
PEOPLE, Respondent, o. RONTEY, Appellant. | NASH, Respondent, 0. NEW YORK CENT. & (Court of Appeals of New York. Oct. 22, 1889.)
H. R. R. Co., Appellant. L. B. Treadwell, for appellant. McKenzie (Court of Appeals of New York. Oct. 29, 1889.) Semple, for respondent.
Calvin Frost, for appellant. Clarence R. No opinion. Judgment affirmed on opinion Conger, for respondent. below. All concur. See 4 N. Y. Supp. 235. No opinion. Judgment affirmed, with costs.
All concur, except GRAY, J., not voting.
See 1 N. Y. Supp. 269. PEOPLE, Respondent, o. SANBORN et al., Ap
pellants. (Court of Appeals of New York. Oct. 22, 1889.) GILLOTT, Respondent, 0. REDLICH et al., Richardson & Robbins, for appellants.
Appellants. Rufus Scott, for respondent.
(Court of Appeals of New York. Oct. 29, 1889.) No opinion. Judgment affirmed. All con J. Homer Hildreth, for appellants. Henry cur, except PECKHAM and GRAY, JJ., dissent. D. Hotchkiss, for respondent. ing. See 46 Hun, 682.
No opinion. Judgment affirmed, with costs. All concur. See 3 N. Y. Supp. 325.
PEOPLE ex rel. TROY UNION R. Co., Re
spondent, v. CARTER et al., Assessors, CROUSE, Respondent, v. ROWLEY et al., imetc., Appellants.
pleaded, Appellants. (Court of Appeals of New York. Oct. 22, 1889.) (Court of Appeals of New York. Oct. 29, 1889.)
R. A. Parmenter, for appellants. Esek W. A. Matteson, for appellants. E. J. Cowen, for respondent.
Richardson, for respondent. No opinion. Orders affirmed, with costs. No opinion. Judgment affirmed, with All concur. See 5 N. Y. Supp: 507.
costs. All concur. See 3 N. Y. Supp. 863.
PROVOST, Respondent, v. MAYOR, ETC., OF STALLCUP et al., Appellants, v. NATIONAL NEW YORK, Appellant.
BANK OF REPUBLIC, Respondent. (Court of Appeals of New York. Oct. 29, 1889.) (Court of Appeals of New York. Oct. 29, 1889.)
D. J. Dean, for appellant. Nelson Cross, Chas. Blandy, for appellants. Wm. s. for respondent.
Cogswell, for respondent. No opinion. Judgment affirmed, with No opinion. Judgment affirmed, with costs. All concur, except GRAY, J., not costs. All concur. See 47 Hun, 639. voting. See 3 N. Y. Supp. 531.
In re Application of WATER COMMISSIONSANDERS, Appellant, v. CHAPIN, Comptroller, OF AMSTERDAM to Acquire Land, etc., Respondent.
etc., of STEPHEN COLLINS et al. (Court of Appeals of New York. Oct. 29, 1889.) (Court of Appeals of New York. Oct. 29, 1889.). Geo. H. Pettit, for appellant. Chas. F.
No opinion. Dismissed on argument. Tabor, Atty. Gen., for respondent.
No opinion. Appeal dismissed on case of Nichols'v. Voorhis, 74 N. Y. 28, with costs. Cohy, Respondent, v. HUSSON, Appellant. All concur. See 4 N. Y. Supp. 957.
(Court of Appeals of New York. Oct. 29, 1889.)
E. P.Wilder, for appellant. Abram Kling, COYKENDALL, Respondent, V. CONSTABLE
for respondent. et al., impleaded, Appellants.
No opinion. Dismissed on argument. See
5 N. Y. Supp. 7. (Court of Appeals of New York. Oct. 29, 1889.)
John J. Linson, for ‘appellants. S. L.
GOOD, Respondent, 0. DALAND et al., Apcosts. All concur. See 1 Ni Y. Supp. 9.
pellants. (Court of Appeals of New York. Oct. 29, 1889.)
No opinion. Motion to dismiss granted,
with costs. See 6 N. Y. Supp. 204. JOURDAN, Respondent, v. HARAN, impleaded,
Appellant. (Court of Appeals of New York. Oct. 29, 1889.) Henry P. Townsend, for appellant. Fran
READ, Appellant, 0. PETRIE, Respondent. cis B. Chedsey, for respondent.
(Court of Appeals of New York. Oct. 29, 1889.) No opinion. Judgment affirmed, with No opinion. Motion to strike from calendar costs. All concur. See 3 N. Y. Supp. 541. 'granted.