THIRD DEPARTMENT, NOVEMBER TERM, 1887. he refused. The court held that the offer by defendants in the same line of business, and plaintiff's refusal should have been admitted to diminish the damages, because it tended to show what he might have earned. There is a distinction between that case and the present. It does not appear that in that case the defendants, when they proposed to discharge him, offered to employ him at a less salary to do the work for which they had originally contracted. But, in this case, to take the defendants own statement, Littlefield said to the plaintiff and others "that I could not pay them two dollars any longer; that I would like to have them go in the boat and work the same as they had before, for fourteen shillings." And as another of defendant's witnesses says in another place, he told them he wanted them to consider the matter and go to work for fourteen shillings. Now, this was a plain proposition to give up the old arrangement or contract and accept a new one. That is, to continue in the same employment at a less price. If the plaintiff and the others had acceded to this, they would have virtually surrendered the old contract and have made a new. No one could understand the transaction otherwise than as a change or modification of the old arrangement. And if the plaintiff and the others had thereupon gone on and worked for the defendants, they never could have recovered more than the one dollar and seventy-five cents per day. Of course when a contract has been broken by one party and the parties make thereafter a new contract, the new contract does not necessarily take away the action for damages for the breach. (McKnight v. Dunlop, 5 N. Y., 537.) But, on the other hand, the parties to a contract may modify it by mutual consent. And the proposition made by defendant Littlefield, if acted upon by plaintiff and others, would plainly have been such a modification. Under the facts of this case, therefore, we do not think it necessary to pass on the question whether if a fair and distinct offer of employment had been made by defendants which plaintiff had refused, this should have been considered in diminution of damages. It might be questionable whether plaintiff was bound to enter into another contract with those who had broken the former. But it is enough to say that the proposition of Littlefield over which only the question arises, was, under the circumstances, a proposition to abandon the THIRD DEPARTMENT, NovembER TERM, 1887. old and to form a new contract. The recovery for the whole time seem to be justified by Everson v. Powers (89 N. Y., 527). The judgment should be affirmed, with costs. LANDON and WILLIAMS, JJ., concurred. Judgment affirmed, with costs. GEORGE H. CROSS, RESPONDENT, v. JOHN H. DEVINE, APPELLANT. Fraudulent representations as to incumbrances on real estate — the measure of dam ages is the amount of the incumbrances and interest. Upon the trial of this action, brought by the plaintiff to recover damages for false and fraudulent representations made by the defendant on a sale of real estate to him, it appeared that the defendant represented that the property was free and clear from all incumbrances, while it was in fact incumbered by a mortgage. Held, that the measure of damages was the amount of the mortgage and interest. That the only exception to this would be the case where the mortgage exceeded the actual value of the land. APPEAL from a judgment of the County Court of Sullivan county, entered upon the verdict of a jury, and from an order denying a motion made for a new trial on the minutes of the county judge. This is an action to recover damages for false and fraudulent representations in the sale of real estate. On the 2d day of April, 1878, plaintiff purchased of defendant certain real estate, situated in the town of Fallsburgh, Sullivan county, N. Y., and described in the complaint. The defendant, at the time the said purchase was made, represented the said property to be free and clear from all incumbrances. The plaintiff, relying on the said representations, purchased it for $800. At the time the said representations were made, there was a mortgage on said property for the sum of $250, which mortgage was a valid lien and incumbrance thereon. The defendant knew that this mortgage was in force and paid interest thereon until 1882. T. A. Read, for the appellant. Devine W. W. Smith, for the respondent. THIRD DEPARTMENT, NOVEMBER TERM, 1887. LEARNED, P. J.: It seems to be settled that an action for damages, occasioned by a false representation, made by the vendor of land, may be maintained, whether the representation be as to the title or as to matters collateral. So it is said in Krumm v. Beach (96 N. Y., 398, at 406). In that same case it is said that the measure of damages is full indemnity to the injured party, and that is said to be determined by the difference in the value of the thing sold and what it should be according to the representation, going beyond, it might be, the amount of the consideration and terest. (Page 407.) Property covered by a mortgage is worth less than it would be if free, by the amount of the mortgage and interest. The only exception to this would be the case where the mortgage exceeded the actual value of the land. But certainly, without proof that the land was worth less than the mortgage, the existence of the mortgage lessens the value of the land by the amount of the mortgage, and the damage, therefore, is at once suffered by the purchaser, who pays for the property what it would have been worth if it were as represented. In the case of Northrop v. Hill (57 N. Y., 351), representations were made not by the vendor, but by another person. Nor do I think that the court held that only nominal damages could be recovered, for at page 357 it is said to be a case of substantial damages. The only question involved was whether the action was barred by the statute of limitations. This is not a case of mere liability to loss. It is a case of actual loss. The thing sold is actually not as good as the .vendor represented it to be. Just as in the case last cited, the land was less in quantity than it had been represented by the vendor. It seems to me that the principles laid down in that case show that the plaintiff has made a prima facie case, showing that his damages equaled the amount of the mortgage and interest. Even though he has not paid the mortgage, his property is worth just so much less than it would have been if free, that is if it is worth the amount of the mortgage. There was no error in the refusal to admit evidence of defendant's business and condition, And the charge was correct as to defendant's liability on the covenants. Judgment affirmed, with costs. WILLIAMS, J., concurred. Judgment affirmed, with costs. THIRD DEPARTMENT, NOVEMBER TERM, 1887. ALFRED C. VAN WAGONER, APPELLANT, v. EZEKIEL An injunction restraining a person from disposing of or interfering with personal This action was commenced in January, 1883, to recover certain articles of personal property belonging to the plaintiff which were in the possession of the defendant, who was alleged to have wrongfully seized them in March, 1875, a demand having been made in April or May, 1875, and another just before this action was commenced. To avoid the defense of the statute of limitations the plaintiff proved that his wife brought an action for separation, in which an injunction was served, in June, 1874, restraining him from disposing of, or in any manner interfering with, her personal property and the personal property now in question; and that this injunction continued in force until April, 1881, when the action was dismissed and the injunction was dissolved. Held, that the injunction order did not forbid the plaintiff to bring an action against the defendant, or any one else who had taken and converted the personal property, and that the running of the statute of limitations was not suspended during the time he was enjoined. McQueen v. Babcock (41 Barb., 337) followed; Fincke v. Funke (25 Hun, 616) distinguished. APPEAL from a judgment in favor of the defendant, entered upon the report of a referee. A. T. Clearwater, for the appellant. F. L. Westbrook, for the respondent. LEARNED, P. J.: This is an action for the recovery of personal property. The plaintiff was, in March, 1875, living on certain premises, where these articles of personal property and some others were, all belonging to him. On that day he was evicted from the premises by the defendant, under a writ of assistance issued after a judgment and sale in foreclosure, and defendant, the purchaser, was put in pos-' session; and on the same day the sheriff, by virtue of an execution issued to collect the deficiency on said judgment, levied on this personal property and sold some of it. The plaintiff claims that when he was evicted the defendant took possession of the personal property not sold by the sheriff, and has remained in possession 46 423 122a 222 THIRD DEPARTMENT, NOVEMBER TERM, 1887. since. This action was commenced in January, 1883, a demand having been made just previously. A demand had also been made, as found by the referee, in April or May, 1875. In 1874 the wife of plaintiff brought an action for separation. In that action she obtained an injunction, served June, 1874, restraining plaintiff from disposing of or in any manner interfering with her personal property. The personal property now in question was within that injunction. In 1877 the plaintiff brought an action against his wife for divorce, and obtained judgment in his favor. Subsequently, and in April, 1881, the said action for separation brought by the wife was dismissed and the injunction granted therein was dissolved. In this present action the referee found that the action was not commenced within six years, and dismissed the complaint. The plaintiff appeals and insists that the statute of limitation did not run during the time when he was enjoined. The first question must be, whether the injunction order forbade plaintiff to bring an action against the defendant or any one else who had taken and converted the personal property. We think not. The object of the injunction was to preserve the property and to prevent the present plaintiff from destroying and disposing of it to the injury of his wife. If it were wrongfully taken out of his possession by some person other than his wife, it would seem not to have been a violation of the injunction for him to recover it; and certainly it would not have violated the injunction for him to bring an action for damages. This question was decided in McQueen v. Babcock (41 Barb., 337). An injunction restrained McQueen, among other things, from intermeddling with, receiving or collecting property of one Brown. The sheriff seized some of the property. This action was brought to recover the value; and the question was, whether the injunction had restrained the bringing of such an action. The court held that it did not. They said that the injunction forbidding intermeddling did not mean that the enjoined party should not protect the property, and that to commence an action against the person who took away the property was not within the sense and meaning of the injunction. It is true that McQueen, in that case, was a general assignee of Brown, and hence he was a trustee for creditors; but what he was in duty bound to do, as trustee, he could lawfully do if the property were his own. |