It abandoned by the agreement of liar position. The order struck the parties and the new one re- out the answer unless certain costs ceived by plaintiffs in satisfaction were paid to plaintiffs' attorney of whatever rights they had under before the case was reached. As the old. It was competent for the record shows that the trial defendant to show that the first went on at the same term with the contract had been rescinded and answer, the presumption is that abandoned, thereby working out the costs specified in the order its dissolution, 87 N. Y., 463; 9 were paid. It has been held that Cow., 46; 1 Sugd. on Vendors, accepting costs awarded by an 256, and this could be done by order was a waiver of the right to parol. 1 Barb., 130; 7 Cow., 48. appeal from it. appeal from it. 8 Abb. N. C., A parol executed agreement may 392. The order recites that the operate as a release of a covenant motion was made to strike out all under seal. 2 T. & C., 257, and the answer but the general denial, cases cited. It was competent for on the ground that it was not audefendant to show that the new thorized by the stipulation. agreement, being as to other sub- does not appear on what papers ject matter and a new valid obli- or proceedings the motion was gation, was received and accepted based or proposed, or whether the by plaintiffs in full satisfaction of answer was allowed to stand on any rights they had under the old the ground of the laches of plaincontract. 75 N. Y., 574; 3 Pars. tiffs in making their motion, or on Cont., 6th Ed., 681. There is because defendant should have evidence in the case from which it leave to amend on paying for it, or became a question of fact to be because the answer ought to stand passed upon by the jury whether as it was in order to fairly carry the first contract was in fact aban- out the object of the stipulation, doned and rescinded by the agree- which, if made in good faith, was ment of the parties and whether to give defendant an opportunity the new one was accepted by to contest fully the alleged inplaintiffs in full satisfaction. AcAc- debtedness to plaintiffs. We think cording to the testimony of de- we must assume that all of the fendant he evidently so underunder- prior proceedings were before the stood it. Nothing appears to have County Court when it made the been said about reserving pay- order and that it should be upheld ments past due. There was nothing on the ground last stated. in the contract that authorized plaintiffs to cancel it and still reserve the right to collect what was past due. Sperry v. Miller, 4 Seld., 336, distinguished. The appeal from the order as to the answer is in a somewhat pecu Orders affirmed, with costs. Opinion by Merwin, J.; Hardin, P. J., and Follett, J., con cur. Where the owner of a parcel of land encumbered by two mortgages, for both of which he was also personally liable, conveyed a portion to defendant, who assumed and agreed to pay them as a part of the purchase price, and afterwards conveyed the remainder to B. by a quit-claim deed; and upon default in payment the mortgages were foreclosed and the whole parcel sold to satisfy the mortgage debts, Held, That B. was entitled to maintain an action upon the covenant to recover the value of the parcel lost to him by reason of defendant's failure to pay the mortgages and the consequent foreclosure sale. The measure or rule of damages is the value of the parcel lost to B. at the time of its sale under the judgment of foreclosure, it being less than the amount of the mortgages. mortgages or any part thereof, and the whole of the premises, including that portion sold to Bingham, was sold under foreclosure, and the whole amount realized on the sale was applied in payment of the mortgage debts. Bingham then assigned and transferred to plaintiff all claims and demands and all causes of action which he had against defendant by reason of his failure to pay off and discharge the mortgages. Upon these facts the referee found as a conclusion of law that plaintiff was entitled to recover of defendant the value of the parcel conveyed to Bingham at the time of its sale under the foreclosure judgment. J. A. Stull, for applt. J. & Q. Van Voorhis, for respt. Held, No error. That the rights of the grantor arising out of defendant's covenant to relieve the Appeal from judgment entered portion retained by her from the upon report of referee. Jane E. Wilcox, being the owner of a parcel of land encumbered by two mortgages given to secure two bonds, for payment of both of which she was personally liable, conveyed a portion thereof to James Campbell, the defendant, who assumed and agreed to pay the bonds and mortgages as a part of the purchase price. Afterwards Wilcox, by her quit-claim deed, granted and conveyed to Bingham all her estate, right, title, interest, claim and demand whatsoever, either in law or equity, in and to the remaining portion retained by her. Defendant did not fulfil his covenant, but failed to pay said burden of the mortgages passed by the conveyance to Bingham, or that he became an equitable assignee of the mortgages and sub. rogated to the rights of the mortgagees to the extent of the value of his parcel lost to him by the failure of defendant to fulfil his covenant, and the consequent foreclosure and sale, and that he was entitled to recover the amount thereof in a personal action upon the covenant. As between Mrs. Wilcox and defendant he became the principal debtor and personally liable for the amount of the mortgages. She stood in the relation of surety, and the parcel retained by her became secondarily liable. If she had been compelled to pay the whole or any portion of the mortgage debts she undoubtedly would have been entitled to maintain an action to recover the amount paid, and would be entitled to be subrogated to the rights of the mortgagees. 8 Hun, 374; affirmed, 71 N. Y., 9; 91 id., 92; 78 id., 318. After conveyance to B. she could sustain no loss by reason of the failure of defendant to pay off the mortgages. And having conveyed without warranty she could not be liable to B. She could maintain no action against defendant, for she has suffered no damage. If, therefore, any cause of action exists, it must be in favor of B., for he is the person who suffers by reason of the non-payment of the mortgages. Under the deed he took all claims or demands in law or equity that existed in favor of Mrs. Wilcox. Defendant's covenant was to pay off and discharge the mortgages which were a lien upon this parcel, and we fail to see why it is not such a covenant as would run with the title. 9 Paige, 649; affirmed, 7 Hill, 260; 7 N. Y., 171. In 70 N. Y., 437-440, the question as to covenants affecting the land and passing by the conveyance, was not involved and not considered. of the mortgagees. The mortgagees could have sued defendant directly upon his covenant to pay the mortgages. 20 N. Y., 268; 24 id., 178. B. could have paid the mortgages and become subrogated to the rights of the mortgagees, and could have maintained an action directly upon the covenant. True, he did not voluntarily do so, but his land has been sold for that purpose; and we fail to see how his equities are changed from what they would have been in case the payment had been voluntary. He has now been compelled to pay a portion of the mortgage debt. To the extent of the payment made he becomes the equitable assignee of the mortgages, and subrogated to the rights of the mortgagees, and as such has the right to sue defendant upon his covenant to recover the amount so paid. Sheldon on Subrogation, §§ 45, 74. 70 N. Y., 437, fully sustains this view of the case. Plaintiff as assignee of Bingham stands in his place, and is entitled to the same rights as his assignor. It was contended that the referee adopted a wrong measure of damages. Held, That the rule applied was correct. The 80 feet parcel was lost to B. on account of defendant's failure Hart v. Lyon, 90 N. Y., 663, to keep his covenant; the loss distinguished. If we are in error upon this point, we are of opinion that plaintiff can recover upon the ground that he has become the equitable assignee of the mortgages and subrogated to the rights therefore to him was the value of the lot. In case B. had raised the money and paid off the mortgages, he would only have been entitled to recover the amount so paid, and for this reason would not be entitled to recover more than the CONTRACT. SERVICES. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Thomas Lacy, applt., v. Sophronia A. Getman, exrx., respt. Decided Jan., 1885. Executors are not excused from the performance of the contracts of their testator by reason of his death, where such contracts relate to ordinary hired labor and where skilled personal services are not contemplated. They may break the contract and discharge the laborer by paying him such damages as he may suffer, but where the contract is performed without objection by the executors, they must perform on their part. Appeal by plaintiff from a judgment entered upon a verdict in his favor, and from the decision of the court reducing the verdict. By consent of counsel the court ordered a verdict for plaintiff for $200, subject to the further consideration of the court. The court, upon further consideration, filed his decision and opinion, reducing the verdict from $200 to $80, to which decision plaintiff's counsel duly filed exceptions. Plaintiff hired to defendant's testator for one year, at $200, to do ordinary farm work. Near the middle of the year the employer died. Plaintiff continued to work Vol. 20.-No. 20b. on the farm, as provided by the contract, until the end of the year. This action was brought to recover the $200 under the contract. The defense in effect is, that the contract of hiring was terminated by the death of the employer, and that after that event plaintiff's services were rendered to the widow of the testator, by whose will she took a life estate in the farm. An offer of judgment was made for services until the date of the death of the employer. W. A. Nims, for plff. Held, Error. Contracts ordinarily bind the executors and administrators of the contracting parties. That is the general rule in executory agreements, but in some few cases performance may be excused, as for instance where performance was prevented by an act of law, 4 N. Y., 411, or where rendered impossible by act of God and without fault of the contracting parties, such as sickness or death of the party contracting to render services, or the death of either of the contracting parties where skilled personal services are contemplated, as in 71 N. Y., 40; 91 N. Y., 179; 1 Allen, 418. But where the contracts relate to ordinary hired labor, as in this case, they may break the contract and discharge the laborer by paying him such damages as he may suffer. It is not impossible for them to perform, and no reason is apparent why they should not perform as in other cases of execu tory contracts of their testator. No case is cited where the death of the employer worked a termination of such contract. In People v. were both valid and operative, the power related only to the remainder, and could be delegated. Globe Ins. Co., 91 N. Y., 174, it In 1855 M. procured the trust estate to be con is held that on the insolvency and dissolution of an insurance company a contract between it and a general agent is dissolved by the action of the State. It is impossible to perform thereafter. The reduction of the verdict to $80, and ordering judgment for that amount, was error. The court erred in rejecting the offer of the plaintiff to show that he performed the contract after the death of the testator under the direction of the defendant. This was not an offer to prove a new contract, but simply to show that defendant elected to perform instead of repudiating it, for which reason a new trial should be had. Judgment reversed, new trial granted, costs to abide event. veyed to her, and on her death devised al' her real estate to her husband for life in trust for her children, and authorized him to sell and convey the same "either in fee or lesser estate," and invest the proceeds. Held, That the wife fully and completely disposed of the whole estate; that the power granted to the husband did not unduly suspend the power of alienation. This was an action of ejectment. It appeared that C., who was the common source of title, died in 1845, leaving a will by which she devised certain real estate to a trustee for the benefit of M., her married daughter, during her life, and provided that the same should not be subject or liable for any of M.'s husband's debts, and that he should not, in any event, have any estate or interest therein. This devise was declared to be upon the condition, "and subject to the power and authority" of M. to dispose of the real estate "by grant or devise." If she failed to do so the remainder was given to her children living at her decease. G. F. Comstock, for applts. Winchester Britton, for respt. Held, That both the trust and power were valid and operative, as Crooke et al., applts., v. The under the rule making it the duty County of Kings, respt. Opinion by Boardman, J.; Hardin, P. J., and Follett, J., concur. WILLS. TRUSTS. POWERS. N. Y. COURT OF APPEALS. Crooke et al., applts., v. Prince, respt. Decided Dec. 2, 1884. One C. died in 1845, leaving a will which de vised certain real estate to trustees for the benefit of M., her married daughter, and provided that it should not be liable for M.'s husband's debts, and that he should in no event have any interest therein. The devise was subject to the power and authority of M. to dispose of the real estate by grant or devise. Held, That the trust and power of the court to harmonize and retain as far as possible all the provisions of a will, the power should be understood as relating only to the remainder and as operating solely upon that. It appeared that in 1855 M., under Chap. 375, Laws of 1849, procured the trust estate to be con veyed to herself. |