Opinion of the Court, per DAVIES, J.

faction of the parties, or it may be considered as entirely out of the case.

What then were the rights and duties of the parties to the residue of the contract; or, assuming the contract to relate only to the oats and corn, in reference to that contract? That was all of the original contract which remained unperformed, and it may be regarded as an independent contract. As the proof now stands, the plaintiffs required performance on the part of the defendant, and offered the security agreed upon, or to pay in advance the contract price of the corn and oats. The defendant refused to perform on his part, not upon the ground that the plaintiffs did not offer to do all that they had agreed, but upon the ground that not having given security as to the rye, the whole contract fell through, and the defendant was excused from performing the residue of the old contract, or the independent one. In this view the judge at the circuit manifestly concurred, in nonsuiting the plaintiffs. But a slight consideration of the point presented will show it to be untenable.

Assuming, as we may, that the contract as to the rye was an independent contract, and had been fully executed, in accordance with the agreement, and to the satisfaction of the parties, then the derendant's position is this: "the plaintiffs not having performed another contract in the precise manner it was agreed it should be performed, though the precise form of performance has been waived by mutual consent, and a different performance accepted, yet, I am discharged, in consequence, from performing another agreement with the plaintiffs, although they are ready and offer to perform it on their part, in exact conformity with its terms. It can be hardly necessary to add, that such a defence cannot avail the defendant. As this court held in this case, the security was only waived as to the rye delivered; as to the oats and corn, the defendant had the right to exact the security, and the same being tendered by the

Concurring opinion of WELLES, J.

*plaintiffs, no excuse is shown for non-performance of the contract on his part. The plaintiffs have proved more on this last trial than they were called on to estab lish, to entitle them to recover. They were under no obligation to make a tender of the security; it is enough, that they were ready at the time and place appointed for the performance of the contract, to receive the corn and oats, and give the security. (Coonley v. Anderson, 1 Hill 523; Bronson v. Wiman, 8 N. Y. 182--8.)

The time then appointed, so far as relates to the oats and corn, may be held to be that at which the interview between the parties took place, after the delivery of the rye. Even, therefore, if the plaintiffs, under the circumstances, could have been required to have been ready, at the time and place, to have performed on their part, it is quite clear, that they were so, and intended strictly to have complied with the terms of their contract. But readiness or a tender on the part of the plaintiffs were not necessary, under the facts disclosed in this case. It is quite clear, that the defendant had previously made up his mind not to comply with the contract; and readiness and a tender by the plaintiffs, under such a state of facts, would have been an idle ceremony. The acts and declarations of the defendant were equivalent to notice to the plaintiffs, that he did not intend to comply with the terms of the contract on his part and perform it. A tender, therefore, by the plaintiffs of the security, was not called for. (Crary v. Smith, 2 N. Y. 60.)

The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

WELLES, J.-Assuming that, by the contract, the plaintiff's were bound to give security for the payment of the purchase-money of the grain, before any part was delivered, the defendant had waived the security, so far as the rye was concerned, which was all paid for. Then, the price having advanced on corn and oats, and the defend

Concurring opinion of WELLES, J.

ant having been overpaid on the rye delivered, the plaintiffs offered, among other things, to give security for the payment of the corn and oats. The defendant refused to receive the security, or to deliver any *more of

* 466 ] the grain. This refusal relieved the plaintiffs from any obligation to tender the security, formally, as that would then have been an idle ceremony. The conduct of the defendant, in delivering the rye without security, and afterwards receiving the pay for it without objection, was calculated to throw the plaintiffs off their guard, and to lead them to suppose that the corn and oats would be delivered in like manner; and on the first intimation afterwards, that the defend int made a point of having security, they offered to give it, and we are to assume that they were ready to do so, and would immediately have given it, in pursuance of this offer, if the defendant had not then put himself upon the ground that the plaintiffs had forfeited their rights to demand the delivery of any more grain.

For these reasons, I think, the judgment of the supreme court should be reversed, and a new trial granted.

Judgment reversed, and new trial awarded.

See Bunge v. Koop, 48 N. Y. 225; Sears v. Conover, 3 Keyes 113; Hayden v. De Mets, 2 J. & Sp. 344.

Statement of the Case.

RATHBONE v. McCONNELL et al.

Costs.-Claim of Title.

In an action for the diversion of a water-course, wherein the plaintiff recovers less than $50 damages, a general denial of the allegations of the complaint presents no claim of title, so as to entitle the plaintiff to costs, under § 304 of the code; nor does an answer setting up a parol license. Rathbone v. McConnell, 20 Barb. 311, affirmed.

APPEAL from the general term of the Supreme Court, in the seventh district, where an order made at special term, allowing costs to the plaintiff, on a recovery of less than $50, had been reversed, and costs awarded to the defendant. (Reported below, 20 Barb. 311.)

This was an action to recover damages for the diversion of a water-course. The defendants by their answer denied each and every allegation of the complaint; and for a further answer averred that the diversion was 66 with the leave, license, permission and consent of the plaintiff," for the purpose of feeding an aqueduct for supplying a village with water. *Upon the trial, the [ * 467 plaintiff had a verdict for $25 damages; and the clerk, upon the adjustment of the costs, allowed them to the defendants; the clerk's decision was reversed at special term; but, on appeal to the general term, the judgment was reversed, and costs awarded to the defendant; the plaintiff, thereupon, appealed to this court.

Barnes, for the appellant.

Kernan, for the respondents.

DENIO, J.-The code gives costs to the plaintiff, on a recovery in the supreme court for any amount, "in an ac

Opinion of the Court, per DENIO, J.

tion for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question on the trial." ($304.) The present was an action to recover damages, and not property; and there was no certificate as to the questions litigated on the trial. If, therefore, the plaintiff is entitled to costs, it is because a claim of title to real property arose on the pleadings. I am of opinion, that the pleadings do not show any such claim of title, by either of the parties, within the sense of the enactment. The complaint charges the defendants with diverting the water of a stream, which formerly ran through a piece of land owned by and in the possession of the plaintiff, by means of channels or sluices cut in the banks. of the stream, above his land. The first answer is, a general denial of the allegations of the complaint; this would compel the plaintiff to prove the possession which he had alleged, and this proof would entitle him to maintain the action, if he could also prove the injury. The defendants did not set up any title to the plaintiff's close, and could not have been permitted to prove any, under these pleadings. It is not to be intended, that the plaintiff would undertake to give any other evidence of ownership than that which he alleged, to wit, possession, or that any question of paper title would be litigated on the * 468 ] trial. That no question of title, *within the acts respecting costs, was presented, under such circumstances, has been decided in two cases. (Ehle v. Quackenboss, 6 Hill 537; Brown v. Majors, 7 Wend. 495.)

The second answer sets up ignorance, in the form prescribed by the code, as to the plaintiff's owning or being in possession of the close mentioned in the complaint. This puts in issue one of the matters embraced in the general denial; and if that general denial did not raise a question of title, this special one does not. The third answer is foreign to the question; it being only a denial of the acts of diversion imputed to the defendants.