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was established the court held and or undertaking, and relied on the decided that the sum named in the courts to determine actual damcontract was fixed damages and ages sustained in the event of nondirected a verdict for that amount. performance; otherwise some lan

Held, Error. In this instance guage would have been employed the meaning of the parties is indicative of an intention to liquinot so obscure as in some cases date the damages. where the same question has been There is but little legal authority presented. Their object was to in this class of cases, because each effect an exchange of real property, case depends entirely on its own and after providing for that they peculiarities. One general rule, say that “either party failing to however, is that where the word comply, &c.” It was a case where “penalty" “forfeiture" is the damages to result from the used that is generally conclusive failure of performance could be against liquidated damages. 16 easily and certainly ascertained N. Y., 471 ; 17 Barb., 260. On and the parties did not undertake the whole examination and contheir determination; they em- sideration of this case our concluployed no language indicative of sion is that the sum of $1,000 an intention to liquidate and fix named in the agreement as a forthe damages, but did name a for- feit was intended as a penalty and feit, a word peculiarly descriptive not for liquidated damages, and of a penalty ; not that any word that the recovery in this action or phraseology will ever be en- must, in any event, be confined to tirely controlling against the fair the damages actually resulting construction and meaning of an from the failure of defendant to entire instrument, but where, as carry out the contract on his part. in this case, there is nothing to Judgment reversed and new countervail the well settled legal trial granted, costs to abide event. signification of the terms employed Opinion by Dykman, J.; Barthey will be permitted prevalence. nard, P.J., and Pratt, J., concur.

This contract declares the provision to be a forfeit, and so the parties must have intended. The

NEW TRIAL. FIXTURES. sum named does not measure or liquidate the damages; the agree

N. Y. COURT OF APPEALS. ment makes no such profession and indicates no such design. The

Bigler, applt., v. The National

Bank of Newburgh, respt. parties call this sum a forfeit and thus clearly indicate their inten

Decided Oct. 31, 1884. tion to make it a penalty. Having prescribed a forfeiture as a Plaintiff recovered judgment for the value of

certain machinery in a g-mill which means of enforcing the perform

was claimed to be personal property. It ance of this contract the parties

appeared that many of the articles, from rested as they do in a penal bond the method of attachment, adaptation to

the use of the premises and intent of the Per curiam opinion. All con. party affixing them as shown by his insur

cur, except Rapallo, J., absent. ing them for the mortgagee, were shown to be part of the realty. Ileld, That a new trial was proper to cure the error in allowing plaintiff to recover for them.

SUMMARY PROCEEDINGS. Affirming S. C., 14 W. Dig., 410.

EXTRA ALLOIVANCE. This was an appeal from an order N. Y. SUPREME COURT. GENERAL of General Term, reversing a judg

TERM. FIRST DEPT. ment against defendant upon both law and facts and granting a

Edward C. Sheehy, applt., v. new trial. The appellant stipu. Joseph J. Kelly, respt. lated for judgment absolute in case Decided Oct., 1884. the order was affirmed. Theodore F. Miller, for applt.

When summary proceedings to dispossess a

tenant are regularly prosecuted, the remedy E. A. Brewster, for respt.

of the defeated party is by appeal from the Held, That this court must con final determination, and not by an action sider the evidence as well as the

to restrain its enforcement.

In an action to restrain the enforcement of a law, and if there was any reason

final determination in summary proceedfor granting the order of the Gen

ings to recover the possession of real properal Term it must be sustained. erty, adjudging the plaintiff to be wrong. The action was brought to re

fully in possession of such property under cover the value of certain machin

a lease from a third person, the subject

matter involved is the lease and not the ery in a sawing and planing mill,

property itself, although the claim of the alleged by plaintiff to be personal plaintiff is that his lessor, and not the deproperty and to.belong to him. It fendant, is the owner of the property, and appeared that many of the articles

a perpetual injunction is asked for, and the

greatest allowance that can be granted, if for which the original judgment

any, is five per cent of the value of such was recovered from the method of lease. their attachment, adaptation to

It is doubtful whether any extra allowance use of the premises where they

can be granted in such a case. were placed, and the intent of the Appeal from a judgment reparty affixing them as shown by covered on trial at the Special his insuring them for the benefit Term, and from an order directing of the mortgagee, and other facts an additional allowance of costs. . showed that they were a part of The action was brought to rethe realty.

strain the execution of a final de Held, That a new trial was termination in summary proceedproper to cure the error committed | ings to recover possession of real in allowing plaintiff to recover for property adjudging the plaintiff to such articles.

be wrongfully in possession of the Order of General Term, revers- property in question. The coming judgment for plaintiff and plaint was dismissed at the Special granting new trial, affirmed, and Term upon the ground that the acjudgment absolute ordered for de- tion was unauthorized, and that fendant.

the proper remedy of plaintiff was

by appeal. The plaintiff was in could regularly be made in such possession under a lease from a an action, 67 Barb., 81, and even third person, and his claim was if the action should be deemed a that his lessor, and not the de- proper one for an allowance, it fendant, was the owner of the should in no event have exceeded property, and he asked for a per- the sum of $500, and that was too petual injunction. Upon a niotion small an amount to require the for an extra allowance the Court exercise of doubtful authority. considered that the title to the Order granting allowance reproperty was involved and granted versed and judgment reduced by an allowance of $1,000, being a deducting the amount of such alpercentage upon the value of the lowance from it. property. The value of plaintiff's Opinion by Daniels, J.; Davis, lease was only $100.

P. J., and Brady, J., concurred. James Henderson, for applt. John Townshend, for respt.

ADVERSE POSSESSION. Held, That since the summary proceedings were regularly prose. N. Y. SUPREME COURT. GENERAL cuted the action was without legal

TERM. FIRST DEPT. support, and the judgment dis

Marx Ottinger et al., applts., missing the plaintiff's complaint was entirely proper.

v. Louis Strasburger, respt. That all that was in controversy,

Decided Oct. S, 1884. as the subject of the action, was a In an action to compel the specific performleasehold interest for the period of ance of a contract to purchase real propone year. That the title of plaint erty it appeared that the last person who iff's lessor was averred not for the

bad a record title to the premises in ques

tion was one B., who died in 1816, leaving a purpose of establishing it as an in

will by which he devised such premises, dependent fact, but to maintain with others, to his exccutors in trust, with the validity of the demise. That it power to sell same and distribute the prowas incidentally, therefore, and

ceeds among his legatees; that in 1821 one

T. was in possession of said premises, but not directly in controversy, and

that no conveyance to him was on record; was not brought into the case as that in 1836 a partition suit was instituted the subject of the action, but to by the heirs and devisees of B. to divide all

his real estate then undistributed under his support the lease upon which

will; and that the premises in question alone the right to maintain the ac

were not included in such suit; that T. tion depended. That the leasehold continued in possession of the premises, interest was therefore the subject claiming them as his own until 1867, when of the action, and upon its value

he died, leaving a will, and that in 1882 his

executor, under a power of sale contained alone the allowance should have

therein, conveyed the premises to the been estimated if the case was plaintiff. Held, That defendant should deemed proper for the exercise of be required to perform his contract to purthat authority.

chase the property. That it may well be doubted Appeal from judgment recov. whether any allowance whatever 'ered on trial at Special Term.

This action was brought to com the property by means of an adpel the specific performance by verse holding, and that it raised the defendant of a contract to a presumption that the property purchase certain real estate which was in fact conveyed to Thompson he refused to perform, upon the under the power of sale contained ground that plaintiffs could in the will of Abraham K. Beeknot convey a good title. It ap- man by his executors. 45 N. Y., peared that the premises in ques- 479, 485 ; 82 id., 265, 268 ; 19 Hun, tion were conveyed to Abraham 273. That this presumption was Beekman, in 1788, by sheriff's deed greatly strengthened by the omisduly recorded; that Abraham sion to include these premises in Beekman devised said premises to the judgment entered in the partiAbraham K. Beekman, who died tion suit brought by the heirs of in 1816, leaving a will by which he Abraham K. Beekman in 1836, for devised said premises to his ex- | if they had not been previously ecutors in trust, with power to sell conveyed and disposed of they the same and distribute the pro- would have formed a necessary ceeds among certain legatees; that part of the subject of that action. in 1821 one Thompson was in pos. That the title acquired by means of session of said premises, but that his possession, fortified by the preno conveyance to him was upon sumption arising from the form of record ; that in 1836 the heirs and the judgment in the partition suit, devisees of Abraham K. Beekman enabled plaintiffs as the grantees instituted an action to partition of the executor of Thompson to all the real estate left by him but convey

defendant the fee not distributed under his will, and simple of the premises. That that no mention or reference to moreover the possession of Thompthis property was made in such son and his executor exceeded any suit; that Thompson continued in possible minority of any heir of possession of the premises, claim Abraham K, Beekman in being at ing to own the same until 1867, his death together with the statu-· when he died leaving a will contain: tory period after the majority of ing a power of sale to his executor, any such heir required to complete under which the latter in 1882 con an adverse possession, and that veyed the premises to plaintiffs there was not therefore even a bare from whom defendant contracted possibility that the right of to purchase. The Special Term plaintiffs to this property could be refused to compel defendant to in any form questioned, and deperform his contract and from fendant should have been required that judgment plaintiffs appealed. to accept it and pay the purchase

F. R. Minrath, for applt. price. 68 N. Y., 247, 258 ; 86 id., David S. Walter, for respt. 575, 584-5; 2 Kernan, 394, 400; 2

Held, That the continued pos. Bos., 161, 165. session of Thompson was all that Hartley v. James, 50 N. Y., 38, could be required to vest a title in distinguished.

to

Judgment directed in favor of S. W. Fullerton, for respt. plaintiffs, requiring defendant Held, That by the settled law to receive and accept the property of this State the deed from dein controversy

fendant to P. was no more than a Opinion by Daniels, J.; Davis, mortgage and had no other or P. J., and Brady, J., concur. greater effect than a mortgage

formally executed and delivered DEED. MORTGAGE.

for the same purpose. 42 Barb.,

390; 31 N. Y., 399. That while a N. Y. SUPREME COURT. GENERAL bona-fide purchaser from P. would TERM. FIRST DEPT.

have acquired title to the propHarriet B. Berdell, respt., v.

erty, 1 Paige, 202 ; id., 551, Robt. H. Berdell, applt.

plaintiff was not such a purchaser,

11 Paige, 459, and the deed to her Decided Oct. 8, 1884.

was in fact no more than an assignDefendant gave to one P. a deed of cer ment of P.'s mortgage interest in tain property owned by him, which though the property and

the property and conveyed to absolute upon its face was understood to be plaintiff no more than a defeasible held as security for a debt owing by him to

title, 2 Sumner, 109, and upon P. P. subsequently gave a deed of the title, 2 said property to plaintiff, who had such a title she could not maintain knowledge of the character of the convey an action of ejectment for the reance to P. In an action of ejectment, lield,

covery of the possession of the That the deed to P. operated only as a mortgage and that the deed of P. to plain property against defendant, who tiff was no more than an assignment of said

was in fact, as well as legally, mortgage, and that the title to the property the mortgagor, and in whom the remained in defendant.

legal title still remained. 4 LanAppeal from a judgment recov- sing, 314 ; 31 N. Y., 399 ; 111 U. ered on the report of a referee. S., 242 ; 54 N. Y., 599.

This was an action of ejectment That no, estoppel as against for the recovery of the possession defendant arose out of the transof certain real estate. It appear- action, for it is only where one ed that defendant had given to party has deceived another by his one P. a deed of the premises in representations or conduct that he question, which, while absolute in can be precluded from asserting form, was intended by both parties and showing the truth upon the as security for a loan of money. ground of estoppel, 82 N. Y., 315; Subsequently P. gave a deed of 69 id., 113, and that plaintiff, said property to plaintiff, who gave had not been able to bring herno consideration therefor and who self within the protection of this had knowledge of the fact that rule. the deed given by defendant to P. Judgment reversed and new trial was intended as security for a ordered. debt.

Opinion by Daniels, J. ; Davis, Herman Aaron and Alfred Tay P. J., and Brady, J., concur. lor, for applt.

Vol, 20.--No. 4a.

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