his case on proving the above facts, but, after a motion for a nonsuit, obtained leave, without amending his complaint, to introduce further evidence for the purpose of showing that the pond was "a nuisance and unwholesome." Some evidence was thereupon received tending to show that in the hot summer months an unpleasant odor sometimes arises from the pond; that there is sometimes a "green scum" on a portion of its surface near its edge; that the bodies of dead animals, cats and dogs, had been taken from it, and that when raised to a certain height water leaches or soaks from the pond into some neighboring cellars.

This evidence was objected to and might properly have been excluded as not within the allegations of the complaint; but upon the whole evidence in the case, we think it was not established that the pond was within the condemnation of the ordinance in question, reasonably construed.

It appeared from undisputed evidence that the pond had existed as such for upwards of forty years; that it is of about two acres in extent and from eight to seventeen feet deep; that it is fed by a copious living spring in one corner; that ice was cut from it at least thirty-four years ago; that the plaintiff has used it for an ice pond about nineteen years and has erected ice houses on its bank for the storage of ice; that it is inhabited by fish of various kinds; bass of three pounds weight having been taken from it; that about seventeen years ago the plaintiff pumped out the water, as far as was possible, by means of a large steam pump, and enlarged and deepened the pond by taking out stone; that he was obliged to run his steam pump three nights in the week to keep the water out sufficiently to enable him to carry on the work, and that when so emptied the water could be seen pouring, in large volume, from the spring above mentioned. It also appears that the pond has an outlet into the Genesee street sewer, which carries off the surplus water beyond that which escapes through fissures in the rock.

There is no evidence that the pond receives any considerable amount of surface water, nor any drainage of any objectionable character. The minute vegetable growth, often called "green scum," at the edge of the pond, and the unpleasant odor from the water in midsummer, are conditions to which all bodies of fresh water, not ærated by rapid motion, are subject; and the plaintiff's pond is not to be condemned because mischievous or evil disposed persons have sometimes thrown into it the dead bodies of animals. Should the pond become foul from these or other causes, so as to be injurious to the health or comfort of the neighborhood, a case would arise for the application of an ordinance, based upon the provisions of the statute, requiring it to be cleansed; and it is probable that the board of health of Rochester have already ordinances in force adequate for that purpose.

It seems to us clear that, upon the evidence before us, the ordinance under which this action was brought can have no application to the case except upon a literal construction of its terms, not warranted by the statute under which it was framed, and which in

this case would be unreasonable, oppressive and subversive of the rights of the plaintiff.

We think the judgments of the county court and of the municipal court must be reversed.

CORLETT, J., concurs; MACOMBER, J., not voting.

Judgment of the county court and of the municipal court of Rochester reversed, with costs of this appeal and in the county

court.

THOMAS B. DUNN, Resp't, v. JOHN K. HUNT, App'lt. (Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

APPEAL.-REFERENCE.

Where a referee distinctly finds the amount of damages sustained by plaintiff, by reason of defendants defaulting on a contract to take goods to be manufactured, to be a certain sum, it will be assumed, where no case was prepared by appellant, that there was evidence to sustain the referee's findings.

APPEAL by defendant from a judgment entered upon the report of a referee in Monroe county.

George E. Warner, for app'lt; R. E. White, for resp't.

CORLETT, J.-On the 1st day of February, 1884, an agreement in writing was entered into between the plaintiff and E. H. Dickenson & Co., composing the firm of Dickenson and John K. Hunt. The material parts of the agreement are to the effect that Dunn should manufacture and deliver globe package dyes at $4.75 per package, provided the cost did not exceed that sum; also, that if he could manufacture and deliver at less cost than $4.75, reckoning his own services at $20 per week, he would do so, and that his statement of the cost should be conclusive upon the other party. The agreement was to last five years, and the appellants were to take from Dunn during the first two years 100 gross packages per month on the average; after that during the terin 166 packages per month, and, in addition to the gross sum above stated, pay twenty-five cents on every gross package. The $4.75 should be paid at the end of every month, and the other twentyfive cents additional at the end of every three months.

The action was commenced in February, 1886. The complaint contained three counts. The first was to recover for packages delivered under the agreement. The second was to the effect that the defendants refused to receive the 100 packages per month, and that the number not received during the two years was 978 packages and a fraction, for which the plaintiff sought to recover damages to the amount of $1,500. The third was to recover damages for refusing to employ the plaintiff to prepare samples.

The answer put in issue the material allegations of the complaint, and the cause was referred. In May, 1889, the referee reported in favor of the plaintiff for $760.40, upon which judgment was entered, and the defendant appealed to this court.

The referee found that the defendant had overpaid on account of dyes delivered the sum of $332.23. He also found "that by reason of the failure and neglect of the defendants to order and

take said 978 76-144 gross packages of said dyes the plaintiff was damaged in the sum of $1,092.69;" and found as conclusion of law, "that the plaintiff is entitled to recover from the defendants to be collected out of the joint property of both defendants, and the separate property of the defendant Hunt, the sum of $760.40." Hunt was the only defendant personally served. The amount for which judgment was ordered was the sum found for damages, less the amount overpaid.

The defendant excepted to the third finding of fact above quoted, and states as a reason for the exception, "that the same is not a finding of fact as no facts are stated therein, and that the same is an opinion or conclusion." The defendant also excepted to the third conclusion of law, which is as follows: "That the defendant Hunt is not entitled to recover any sum whatever against the plaintiff upon the cause of action set up in his answer as a counterclaim, The defendant also excepted to the fourth conclusion of law above quoted, and after the exception states various reasons for it.

No case was made. So it comes before this court on the referee's findings, and the exceptions thereto. It will be noticed that the only questions before this court are upon the findings of fact above quoted and the conclusion of law awarding to the plaintiff the amount for which judgment was entered. No errors appear upon the record. The referee distinctly finds the amount of damages sustained by the plaintiff by reason of the defendant's default. The appellant insists that the finding is defective because it fails to state the facts. The evidence upon which the finding is based occurred on the trial, and if the appellant believed the proof was not sufficient to warrant this finding, he should have prepared a case; then the merits of his contention could be considered. As it is, it must be assumed that there was evidence to sustain the referee's findings. The conclusion based upon it was the legal result.

The learned counsel for the appellant cites numerous authorities to show the true rule of damages. The difficulty with his position is that the record shows no errors. The appellant's argument is seemingly based upon the opinion of the referee. But it is not a part of the record, and is not before the court. Van Tassel v. Wood, 76 N. Y., 614; Verplanck v. Member, 74 id., 620.

But an examination of the opinion of the learned referee fails to disclose any errors. The judgment must be affirmed. DWIGHT, P. J., and MACOMBER, J., concur.

CHARLES D. THOMPSON, Resp't, v. ALEXANDER E. MCLEAN et al., App'lts.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. SALE-RIGHT OF VENDOR TO POSSESSION UNTIL PAYMENT.

Where a sale is for cash, the vendor has a right to the possession until payment, and when the vendee refuses to pay for a portion after obtaining possession the vendor may maintain an action of replevin.

2. SAME.

A person wrongfully taking property is liable although he acts as agent

for another.

APPEAL from a judgment in favor of the plaintiff entered upon the verdict of a jury in Wyoming county, and from an order denying a motion for a new trial.

Fanning & Williams, for app'lts; M. E. & E. M. Bartlett, for resp't. CORLETT, J.-In February, 1889, William W. Durfee and the defendant Álexander E. McLean were engaged in buying apples for the defendant, Henry B. Slade, a fruit dealer in the city of Rochester. On the 27th day of that month Durfee made a contract in behalf of the defendant Slade for the purchase of a quantity of apples.

The plaintiff's contention was that he sold all his apples for $1.25 per barrel. The defendants claim that they bought first quality of apples only for that price, and that no price was agreed upon for second class fruit, which amounted to from forty to fifty barrels.

In March the apples were delivered at the Erie depot at Dale in Wyoming county. The defendants paid $312.50 for 250 barrels at the alleged contract price for first class apples. This left between forty and fifty barrels claimed to be second class. The defendants refused to take these and pay the price claimed by the plaintiff. He insisted upon the full price for all apples and refused to allow any of them to be shipped untill full payment. The defendants refused and the plaintiff brought replevin. Issue was joined and the action was tried in September, 1889, at a circuit in Warsaw before the court and a jury. The trial resulted in a verdict for the plaintiff; the defendants made a motion for a new trial which was denied; judgment was entered, and the defendants appealed to this court.

The plaintiff's evidence tended to show the purchase on the terms alleged by him, while the defendants' evidence tended to establish the reverse. The jury found for the plaintiff, the amount of the recovery being limited to the apples not paid for. It is a familiar rule that where the sale is for cash the vendor has a right to the possession until payment. Osborn v. Gantz, 60 N. Y., 541; Russell v. Nicoll, 3 Wend., 112.

A person wrongfully taking property is liable, although he acts as agent for another. Latimer v. Wheeler, 3 Abb. Ct. App. Dec., 42; Judson v. Cook, 11 Barb., 645.

No exceptions were taken on the trial requiring comment. The evidence was sufficient to submit the case to the jury.

were committed requiring a new trial.

Judgment and order must be affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.

No errors

WEBSTER B. VAN NUYS, Resp't, v. JOSIAH E. TITSWORTH, Impl'd,

App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

DISCONTINUANCE-COMPROMISE-WHEN WILL BE SET ASIDE.

Where plaintiff is an invalid and his health is injuriously affected by the trouble and anxiety incident to the trial, and he was chiefly induced, N. Y. STATE REP., VOL. XXXII. 93

against his attorney's advice, to enter into the agreement for a compromise of his claim and a settlement of the action by his desire to escape future litigation, when, in fact, he thereby really involved himself in future litigation likely to be even more serious and protracted, it is proper for the court to set aside the agreement and discontinuance and restore the parties to their former status.

APPEAL by defendant from an order of the Livingston special term setting aside an agreement for the settlement of the action, together with the stipulation entered thereupon in the minutes of the referee before whom the action had been partially tried.

F. C. Peck, for app'lt; F. W. Noyes and C. J. Bissell, for resp't.

DWIGHT, P. J.-Agreements and stipulations made between the parties to a pending action, and relating to its prosecution or discontinuance, are regarded as specially within the supervision and control of the court, and a wide discretion is exercised in relieving parties from such agreements, even though made upon sufficient consideration, if only both parties can be restored to the same condition as when the agreement was made. It is not necessary in such case to show fraud, deceit or mutual mistake, over-reaching or undue influence; it is sufficient if it appear that either party has inadvertently, unadvisedly or improvidently entered into an agreement which will take the case out of the due and ordinary course of proceeding in the action, and in so doing may work to his prejudice. Becker v. Lamont, 13 How. Pr., 23, and the cases and authorities cited; Barry v. The Mutual Life Ins. Co., 53 N. Y., 536.

In the case first cited, Judge Mason quotes a remark of Lord Lyndhurst, in Furnival v. Bogle, 4 Russell, 149, when relieving a party from an important order entered by consent. The lord chancellor said: "I am the more disposed to come to this conclusion because, though the plaintiff will lose the benefit of the stipulation, he will not lose any advantage which the merits of the case entitle him to." The remark, though apologetic in form, indicates the principle upon which this power of the court is exercised, viz.: that the court to which the rights of parties have once been submitted will exercise a supervision of all proceedings in the action, even though taken by consent, and will control such proceedings with a view to a final disposition of the case according to its merits.

This action was for the settlement of a partnership account, and was brought by the plaintiff as assignee of the interest of his brother in the copartnership, which had been transferred to the former in consideration of an indebtedness due to him from the latter. The proceedings in the action had been protracted; the plaintiff was an invalid, and his health was injuriously affected by the trouble and anxiety incident to the trial, and he seems to have been chiefly induced to enter into the agreement for a compromise of his claim and a settlement of the action by his desire to escape further litigation. He entered into the agreement against the advice of his attorney and the counsel who had assisted in the trial, and the agreement was drawn by an attorney not engaged in the case. Developments