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October 1, 1880, as security for the perform- | 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 defendmenced 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 installments, 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 directed a judgment in favor of the defendant Ramsdell against the plaintiff, dismissing the complaint in this action, with costs, and also a judgment against the defendant Dix, but without costs.

John G. Gibson, for appellant. Henry T. Utley, for respondent Ramsdell. Loton S. Hunt, for respondent Dix.

POTTER, J., (after stating the facts as above.) We do not deem it necessary, in disposing of this appeal, in view of the very able opinions delivered by the special and general terms of the court below, to enter into a very full or elaborate discussion. The judgment of the court below might well be affirmed upon the views presented in those opinions. It was held, upon a consideration of the facts found by the learned trial court in this action, that there were no confidential, fiduciary, or trust relations between the plaintiff and the defendant,--at least, none that should require the defendant to assign to the plaintiff the lease the defendant Ramsdell entered into with the defendant Dix, as security for the installments owing to plaintiff under the contract of purchase and sale, as demanded by plaintiff. The appellant's counsel has cited upon his brief a large number of cases establishing and illustrating relations of trust and confidence between partners, lessees, executors, and trustees. I have examined most of the cases referred to, and they do not hold or determine, as it seems to me, that the relations between the plaintiff and defendant, under the contract between them for the sale and purchase of the premises, are of that character.

In this statement, I assume there was no agreement, express or implied, that the defendant would apply for or take a new lease

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payment of said purchase money, the plain-
tiff agreed to execute and deliver an assign-
ment of the original (Fenner) lease to the
defendant Ramsdell. This was but a con-
tract by plaintiff to sell, and by Ramsdell to
purchase, plaintiff's right, title, and interest
under the original lease. When this con-
tract shall have been executed, it will be sim-
ply a quitclaim deed, without any covenants.
Thus, it appears there were no covenants cre-
ating fiduciary or confidential relations; and
the true relations, as it seems to me, are those
which spring from the relation of vendor and
vendee. From this relation, the plaintiff
claims that he is entitled to the second or re-
newal lease; or, in other words, that the de-
fendant Ramsdell was, in taking the new
lease, the plaintiff's trustee or agent, and
made the new lease for the benefit of the
plaintiff. I do not think the defendant Rams-
dell owed the plaintiff any allegiance or duty
of that character. In Watkins v. Holman,
16 Pet. 54, it is said by the court, in discuss-
ing such relations, that "the relation of land-
lord and tenant in no sense exists between
vendor and vendee." Osterhout v. Shoe-
maker, 3 Hill, 513-518: "He [the grantee]
takes the land to hold for himself, and to dis-
pose of it at pleasure. He owes no faith or
allegiance to the grantor; and he does him no
wrong when he treats him as
him as an utter
stranger to the title.

It has been often held that the grantor in fee may purchase in an outstanding or hostile title to his grantor, and fortify his own defective title, and thus make good to himself what his grantor's deed, with its covenants, failed to do. Kenada v. Gardner, 3 Barb. 589. Was it ever claimed that a grantor under a deed containing the fullest covenants, but which conveyed no title to him because the grantor had none, could be com

That relation is based upon the principle of estoppel in the one case, and in the other upon the principle that a party cannot rescind his contract without restoring what he has received under it, viz., possession. When, however, either the tenant or such vendee has surrendered his possession, he may contest his landlord's or his vendor's title, in an action of ejectment, by showing a better title, derived from another, or by any other legitimate defense. But that principle is not involved in this case. The action is brought, not to recover the possession of the premises contracted to be sold, but mainly to compel the defendant to assign to the plaintiff the rights which the defendant acquired under the new lease, to the end that plaintiff may hold and wield it as security for the payment of the purchase price of plaintiff's interest under the expired lease.. This is the equitable relief sought by the plaintiff in this action, and I do not think he has shown himself entitled to it. The judgment should be affirmed, with costs. All concur, except FOLLETT, C. J., and HAIGHT, J., not sitting. (117 N. Y. 439)

pelled to give the title which such grantee | he entered into the possession of the premises. had purchased from another to his grantor, who took his money, but gave him nothing for it? Or, to state a case more nearly resembling the case under consideration, that a grantor who had no title, and so conveyed to his grantee none, might nevertheless compel such grantee to convey to him the title he purchased of another, so that the grantor might have good security for the payment of a mortgage which the grantee had given to his grantor, to secure the purchase money, but whose deed conveyed nothing to the grantee? It was found, and not disputed-indeed, it was alleged in the complaint-that at the time the plaintiff assumed to contract to sell the premises to defendant the former lease had expired; and that there was no legal right in the lessee or assigns to compel a renewal; and that the renewal depended upon the option of the lessor, and that option depended upon such terms, as to the amount of rent and character of the lessee, as should suit the landlord, though preference was generally given the tenant in possession, if he had the qualifications, and would assent to the terms dictated by the landlord as to the amount of rent and duration of the term of the new lease. If any duties spring from a contract in these circumstances, I should expect that one of them would be that the vendor who held the lease, and must have known that it had expired, or nearly so, and had sold it for $800, should himself have undertaken to have it renewed. But, if the vendor was not disposed to do this, he should, at least, have reminded his vendee, who had no knowledge, or means of knowledge, at hand as to the termination of the lease, and should have induced the defendant, the vendee, to procure the renewal of the lease. But the plaintiff took no agreement from the defendant to do so, but waited until the defendant had obtained a new lease, at a rent more than double that of the old lease, and for a term of only 10 years, and then demanded that the defendant should assign it to him, to secure the payment of the purchase price.

I am not unaware that there is a class of cases, from which the appellant has collected a large number, where the renewal of a lease upon the same terms will be held for the benefit of a mortgagee of the first leasehold estate, or one partner has obtained a renewal in fraud of the rights of his copartner, under certain circumstances. The reason of the rule in the case of a mortgagee is because in the mortgage it was covenanted, or the law implied a covenant of title, and thereafter the mortgagor would be estopped from claiming that the title he had expired. But these principles are not applicable to this case.

In am not unmindful, in the expression of these views, that in one respect the relation between vendor and vendee entering under a contract to convey is analogous to the relation between landlord and tenant, and that is

this: that neither the tenant nor such vendee will be heard to deny the title under which

WOOD . MITCHELL.1

PARKINSON v. MITCHELL. (Court of Appeals of New York. Dec. 3, 1889.) STATEMENT FOR JUDGMENT BY CONFESSION.

Under Code Civil Proc. N. Y. § 1274, which provides that a statement for judgment by confession must state concisely the facts out of which debt is a balance due plaintiff of various sums the debt arose, a statement that recites that the loaned and advanced by him to defendant during a period of nearly two years is too indefinite to support a judgment.

Appeal from supreme court, general term, first department.

James C. Bergen, for appellants. Everett D. Barlow, for respondents.

EARL, J. The Code (section 1274) provides that the written statement upon which a judgment by confession may be entered, if the judgment to be confessed is for money due or to become due, "must state concisely the facts out of which the debt arose;" and this was also the requirement of the Code of Procedure, (section 383.) It is claimed on behalf of the moving party here that the statement upon which the judgment assailed was entered does not comply with this requirement. It is as follows: "This confession of judgment is for a debt now justly due to the said plaintiff from me arising from the following facts, viz.: The said sum of $5,000 is a balance due to said plaintiff of various sums of money loaned and advanced by him to me, the said defendant, during a period from about July 1, 1886, to date, and includes interest upon such loans and advances to this date."

the Code of Procedure and section 1274 of the Many decisions construing section 383 of present Code have been made. But no de1 Reversing 6 N. Y. Supp. 948, mem.

CROOKED LAKE NAV. Co., Respondent, v.
KEUKA NAV. Co., Appellant.

(Court of Appeals of New York. Oct. 8, 1889.)
Wm. T. Morris, for appellant. Wm. M.
Johnson, for respondent.

cision has come to our attention holding that, such an indefinite and deficient statement as the one here is sufficient. The concise statement of facts out of which the indebtedness arose is required, so that any party interested may be able to investigate the matters, and thus ascertain whether the confession of judgment was accurate, 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 YORK, Respondent.

All concur. See 43 Hun, 635.
No opinion. Judgment affirmed, with

costs.

No opinion. Judgment affirmed, with
All concur. See 3 N. Y. Supp. 946.

facts should be so definite that the affiant would be exposed to punishment for perjury in case of any misstatement. This state-(Court of Appeals of New York. Oct. 8, 1889.) Alex. Thain, for appellant. David J. ment is in the highest degree indefinite. The moneys are alleged to have been loaned at Dean, for defendant. various times during a period of nearly two years. There is absolutely no information costs. as to the amount of the loans. They may have amounted to $10,000 or $100,000, the indebtedness having been reduced by payments or offsets to less than $5,000. No 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.

WILLIAMS et al., Respondents, v. WALKER et al., Appellants.

PEOPLE, Respondent, v. RICKER et al., Appellants.

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. We are therefore of opinion that the orders of the general and special terms should be reversed, and the motion granted, with costs to the appellant of appeal to the general term and to this court, and $10 costs of the motion. All concur, except DANFORTH and PECKHAM, JJ., not voting.

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(Court of Appeals of New York. Oct. 8, 1889.) Benj. W. Downing, for appellants. John Fleming, for the People.

No opinion. Judgment affirmed. All concur. See 4 N. Y. Supp. 70.

OWENS, Respondent, v. CROMWELL, Appellant.

(Court of Appeals of New York. Oct. 8, 1889.) M. H. Hirchberg, for appellant. M. N. Kane, for respondent.

No opinion. Judgment affirmed, with costs, on opinion below. See 44 Hun, 627.

MCDERMOTT, Appellant, v. THIRD AVE. R.
Co., Respondent.

(Court of Appeals of New York. Oct. 8, 1889.)
Edward T. Wood, for appellant. Wm. H.
Page, Jr., for respondent.

No opinion. Judgment affirmed, with costs. All concur, except DANFORTH, J., not voting. See 44 Hun, 107.

CHADWICK, Respondent, v. BURROWS et al.,
Appellants.

RABER, Appellant, v. LOUGHRAN, Respond- (Court of Appeals of New York. Oct. 8, 1889.)

ent.

(Court of Appeals of New York. Oct. 8, 1889.)
Charles J. Buchanan, for appellant. Jo-
seph A. Burr, Jr., for respondent.

No opinion. Orders affirmed, with costs.
All concur.
See 44 Hun, 628.

Geo. Wing, for appellants. A. K. Potter, for respondent.

No opinion. Appeal dismissed, with costs, on the ground that the judgment appealed from and the sole matter in controversy, excluding costs, is less than $500. All concur, except FINCH, J., absent. See 42 Hun, 39.

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In re Accounting of NILES. (Court of Appeals of New York. Oct. 15, 1889.) Motions to amend remittitur, etc.

Chas. Lyons, Jr., and Merritt E. Sawyer, for respondents.

VAIL V. VAIL.

(Court of Appeals of New York. Oct. 15, 1889.) J. H. Dougherty, for the motion.

No opinion. Motion to dismiss granted, with $10 costs. See 5 N. Y. Supp. 872.

HUGGUNS, Appellant, v. RILEY, Commissioner, Respondent.

(Court of Appeals of New York. Oct. 15, 1889.) with costs. See 4 N. Y. Supp. 282. No opinion. Motion to dismiss denied,

In re WATER COM'RS OF AMSTERDAM, Appellants, v. COLLINS et al., Respondents. (Court of Appeals of New York. Oct. 15, 1889.) M. L. Stover, for appellants. John M. Carroll, for respondents.

No opinion. Motion to open default denied, with costs.

No opinion. Both motions denied, with BEAL, Appellant, v. NEW YORK CENT. & $10 costs in each motion.

RIKER, Respondent, v. LEO, impleaded, Appellant.

(Court of Appeals of New York. Oct. 15, 1889.) Motions to amend remittitur, etc.

Louis Marshall, for the motion. John E. Parsons, for appellant.

No opinion. Motion for reargument denied, and remittitur amended so as to grant a new trial; costs to abide event. See 21 N. E. Rep. 719.

WORTMAN et al., Respondents, v. ROBINSON, impleaded, Appellant.

(Court of Appeals of New York. Oct. 15, 1889.) Motion to amend remittitur, etc.

No opinion. Motion granted, on payment by the appellant of all costs subsequent to the serving of the demurrer.

H. R. R. Co., Respondent.

(Court of Appeals of New York. Oct. 15, 1889.) Motion to transfer to first division. No opinion. Motion granted; case recalled, to be put at the head of general calendar.

In re Application of NEW YORK, L. E. & W. RY. Co. to Appraise Lands of ABRAM M. CHESBROUGH et al.

(Court of Appeals of New York. Oct. 22, 1889.) E. Countryman, for appellants. F. D. Locke, for respondent.

No opinion. Appeal dismissed, with costs. All concur. See 6 N. Y. Supp. 766.

CLARK, Respondent, v. CLARK, Appellant. (Court of Appeals of New York. Oct. 22, 1889.) E. P. Wilder, for appellant. T. B. Wakeman, for respondent.

No opinion. Order affirmed, with costs. HEILBRON et al., Respondents, v. MCALEE- All concur. See 13 Daly, 497.

NAN, Appellant.

(Court of Appeals of New York. Oct. 15, 1889.) In re Petition of BRAINERD to Vacate an

No opinion. Motion to open default granted, without costs.

COHEN, Appellant, v. MOREHOUSE et al., Respondents.

(Court of Appeals of New York. Oct. 15, 1889.) No opinion. Motion to open default granted, without costs.

CURTICE, Respondent, v. WEST, Appellant. (Court of Appeals of New York. Oct. 15, 1889.) 8. D. Bentley, for the motion. Horace L. Bennett, opposed.

No opinion. Motion to dismiss denied, with $10 costs.

Assessment.

(Court of Appeals of New York. Oct. 22, 1889.) Jas. A. Deering, for appellant. G. L. Sterling, for respondent.

No opinion. Order affirmed, with costs. All concur. See 1 N. Y. Supp. 78.

MCBRIDE, Respondent, v. MCBRIDE, Appellant.

(Court of Appeals of New York. Oct. 22, 1889.) Preston Stevenson, for appellant. W. Bourke Cochrane and Saml. G. Adams, for respondent.

No opinion. Appeal dismissed, with costs. All concur. See 5 N. Y. Supp. 388.

PEOPLE, Respondent, v. RONTEY, Appellant. | NASH, Respondent, v. NEW YORK CENT. &
H. R. R. Co., Appellant.
(Court of Appeals of New York. Oct. 22, 1889.)
L. B. Treadwell, for appellant. McKenzie
Semple, for respondent.

No opinion. Judgment affirmed on opinion below. All concur. See 4 N. Y. Supp. 235.

PEOPLE, Respondent, v. SANBORN et al., Ap

pellants.

(Court of Appeals of New York. Oct. 29, 1889.) Calvin Frost, for appellant. Clarence R. Conger, for respondent.

No opinion. Judgment affirmed, with costs. All concur, except GRAY, J., not voting. See 1 N. Y. Supp. 269.

(Court of Appeals of New York. Oct. 22, 1889.) GILLOTT, Respondent, v. REDLICH et al.,

Richardson & Robbins, for appellants. Rufus Scott, for respondent.

No opinion. Judgment affirmed. All concur, except PECKHAM and GRAY, JJ., dissenting. See 46 Hun, 682.

PEOPLE ex rel. TROY UNION R. Co., Re

Appellants.

(Court of Appeals of New York. Oct. 29, 1889.) J. Homer Hildreth, for appellants. Henry D. Hotchkiss, for respondent.

No opinion. Judgment affirmed, with costs. All concur. See 3 N. Y. Supp. 325.

spondent, v. CARTER et al., Assessors, CROUSE, Respondent, v. ROWLEY et al., imetc., Appellants.

(Court of Appeals of New York. Oct. 22, 1889.)

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pleaded, Appellants.

(Court of Appeals of New York. Oct. 29, 1889.) W. A. Matteson, for appellants. E. J. Richardson, for respondent.

No opinion. Judgment affirmed, with costs. All concur. See 3 N. Y. Supp. 863.

PROVOST, Respondent, v. MAYOR, ETC., OF STALLCUP et al., Appellants, v. NATIONAL

NEW YORK, Appellant.

(Court of Appeals of New York. Oct. 29, 1889.) D. J. Dean, for appellant. Nelson Cross, for respondent.

No opinion. Judgment affirmed, with costs. All concur, except GRAY, J., not voting. See 3 N. Y. Supp. 531.

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(Court of Appeals of New York. Oct. 29, 1889.)

BANK OF REPUBLIC, Respondent.

(Court of Appeals of New York. Oct. 29, 1889.) Chas. Blandy, for appellants. Wm. S. Cogswell, for respondent.

No opinion. Judgment affirmed, with costs. All concur. See 47 Hun, 639.

In re Application of WATER COMMISSION-
ERS OF AMSTERDAM to Acquire Land,
etc., of STEPHEN COLLINS et al.
(Court of Appeals of New York. Oct. 29, 1889.).
No opinion. Dismissed on argument.

COнU, Respondent, v. HUSSON, Appellant. (Court of Appeals of New York. Oct. 29, 1889.) E. P. Wilder, for appellant. Abram Kling, for respondent.

No opinion. Dismissed on argument. See 5 N. Y. Supp. 7.

GOOD, Respondent, v. DALAND et al., Appellants.

(Court of Appeals of New York. Oct. 29, 1889.) No opinion. Motion to dismiss granted, with costs. See 6 N. Y. Supp. 204.

Henry P. Townsend, for appellant. Fran- READ, Appellant, v. PETRIE, Respondent.

cis B. Chedsey, for respondent.
No opinion. Judgment affirmed, with
All concur. See 3 N. Y. Supp. 541.

costs.

(Court of Appeals of New York. Oct. 29, 1889.) No opinion. Motion to strike from calendar granted.

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