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2 Wend., 243, and defendants an agreed annual rental of $8,400, , could acquire no right under it. which he expressly covenanted to

Judgment of General Term, re- pay, which sum was the interest versing judgment dismissing com- upon a certain mortgage of $120,plaint, affirmed, and judgment | 000, given by said road to secure absolute for plaintiff on stipula

the holders of bonds for that tion.

amount which had been negotiated Opinion by Danforth, J. All by said company. The lease proconcur.

vided that plaintiff might, by paying the principal of said mortgage,

be relieved from further payment LEASE. ESTOPPEL. of rent, save a nominal sum, and

should be entitled to retain possesN. Y. COURT OF APPEALS.

sion of the property to the end of Woodruff, applt., v. The Erie his term.

his term. It also provided for a R. Co. et al., respts.

surrender of the property at the

expiration of the term or the anDecided Nov. 20, 1883.

nulment of the lease for other Plaintiff leased the property of a railroad for

causes. Plaintiff entered into a term of years at an annual rental equal to the interest on a mortgage given by the

possession under this lease. Subserailroad company to secure bonds. The quently, in 1871, plaintiff leased lease provided that plaintiff might be re- all of the property acquired by lieved from payment of rent on paying the him under the lease from the E. & principal of the mortgage and also for a

G. V. R. Co. to the Erie R. Co. surrender at the end of the term. Plaintiff afterwards leased all the property to the

for the term and upon covenants Erie Railway Co. for the term and on sim- and conditions similar to those ilar covenants. In an action to compel the contained in the lease to him. receiver of the Erie Co. to pay for the use

Plaintiff brings this action by leave of the property, Held, That neither of the leases were void as ultra vires, malum in se,

of the court to require the receiver malum prohibitum or contrary to public

of the Erie R. Co. to pay for the policy; that defendant, as far as his con- use of the leased property during tract has been executed, is estopped from

its occupancy and enjoyment by contesting the title of his lessor or the val

him. The receiver claims that idity of the conveyance by which he acquired possession of the property, and this the lease by which plaintiff acestoppel applies to all who claim through or quired possession of and an inunder him ; that plaintiff by his lease to

terest in the E. & G. V. R. Co. is the Erie Co. became surety for payment of the rent and had a right to call upon it to

ultra vires, and that the title indemnify and protect him from his col- thereby claimed by plaintiff as well lateral liability.

as that attempted to be conveyed to Reversing S. C., 13 W. Dig., 162.

the Erie R. Co. was invalid and Plaintiff acquired under a lease imposed no legal obligation upon an interest in the property of the him, and refuses to pay the rent E. & G. V. R. Co., a corporation reserved, but has continued to ocduly organized to build and cupy and use the demised propoperate the road in question, for lerty.

J. A. Van Derlip, for applt. J. was appointed the E. & G. V. E. C. Sprague, for respts. R. Co. was named as one of the

Held, That this action was main- leased roads, and its rental was tainable ; that neither the lease to described as $8,400 per annum. plaintiff, nor the one from plaintiff The orders by which J. was apto the Erie R. Co. was void as pointed receiver have not been being malum in se, malum pro modified or appealed from. hibitum, or contrary to public Held, That the parties to the acpolicy ; nor can they be avoided tion in which J. was appointed reby the respective lessees thereof ceiver cannot now be allowed to on account of any want of power dispute or question the power conon the part of the respective lessors ferred upon him; that J., by ento make such contracts. Laws tering into the possession of and 1839, Chap. 213; 22 N. Y., 258; 63 occupying the property leased by id. 62; 46 N. Y., 644; 77 id. 234; plaintiff to the Erie R. Co., in80 id. 27; 86 id., 112; Laws 1847, curred a liability for payment of Chap. 222 ; Laws 1855, Chap. 302; the rent under the lease; that not Laws 1864, Chap. 582 ; Laws 1867, having attempted to secure a modChap. 254; Laws 1869, Chaps. ification of the terms of the lease 237 & 844; Laws 1880, Chap. 349. with the consent of the various

Defendant, so far as his contract parties interested, or to repudiate with plaintiff has been executed, the lease and surrender the propis estopped from contesting the erty, J. must be held to have contitle of his lease or the validity of tinued his acceptance under the the conveyance by which he has terms and conditions of plaintiff's acquired possession of the leased | lease as to the payment of rent property. 1 Platt on Leases, 57, ) thereon. 58 ; 15 N. Y., 330; 9 id., 45. The Although plaintiff by virtue of estoppel which binds the tenant his covenant with the E. & G. V. also binds all who claim through R. Co. was originally primarily or under him. Taylor's Landlord liable to pay the annual rent, yet and Tenant, SS 89, 90, 91, 705, 657; throngh his covenant with the Arch. Landlord and Tenant, 219. Erie R. Co., so far as the latter

The defendant J. was appointed was concerned, he became a mere receiver of the Erie R. Co. May 25, surety for the payment of the debt 1875, in an action in the Supreme and had the right to call upon it Court to which all the mortgagees to indemnify and protect him from of the Erie Co. were made defend his collateral liability, and can ants. He entered into possession maintain an action in equity to of the property of the Erie R. Co. com pel the Erie R. Co. to perform and the lines operated by it and its covenant without first paying continued in possession of and to the debt, and is not limited to his operate them until in 1878, when action on the covenant. 10 Paige, his possession as receiver termi- 595 ; 60 Eng. Ch., 27; 7 All., 371; nated. In the papers upon which I 11 id., 506.

Judgment of General Term, re- Appeal dismissed. versing judgment of Special Term Per curiam opinion. All confor plaintiff, reversed, and judg. cur. ment of Special Term affirmied. Opinion by Ruger, Ch. J. All


Marvin, applt., V.


impld., respt. N. Y. COURT OF APPEALS.

Decided Nov. 20, 1883. McKenna, admrx., respt., v.

Plaintiff entrusted B, with certain moneys Bolger, applt.

to be used in making a joint purchase of Decided Dec. 14, 1883.

the interest of one W. in certain property,

the value of which was not known, but B. An order of General Term denying motion was to pay for plaintiff's half whatever he to dismiss an appeal will not be reviewed in paid for his own, not exceeding the amount Court of Appcals where the appeal papers

entrusted to him. B. did not account, and do not show that such order was not one plaintiff could not ascertain without inveswithin the discretion of the court.

tigation and inquiry whether B. so applied

the whole amount or what the securities This was an action to recover

bought were. Held, That the facts justified a suin alleged to be due on a con

a resort to equity and a decree for an tract. Defendant demurred to the accounting. complaint on the ground that it This action was brought to comdid not state facts sufficient to pel an accounting by the defendconstitute a cause of action. The

ant B. of a joint purchase by him, demurrer was sustained at Special in which the parties interested Term and judgment ordered for

were plaintiff and defendants B. & the defendant, but with leave to M. The plaintiff's interest was plaintiff to amend his pleading. one-half the property purchased Instead of doing so he appealed and one-half of the purchase from the judgment to the General money. It appeared that B. was Term, where a motion to dismiss the agent of plaintiff to purchase the appeal was denied, and from for him of one P. the one-half of that decision an appeal is taken the interest of one W. in certain by defendant to this court. There property, whatever that, in fact, is nothing in the appeal papers to might prove to be beyond what was show upon what ground the mo- certainly known; that B. was to pay tion was made, nor does it appear for such half precisely what he that the order was not one within himself paid for the remaining half, the discretion of the Supreme but not to exceed $25,000; that Court.

B. was entrusted with plaintiff's John McCrone, for applt. money to be used in effecting such M. J. McKenna, for respt. purpose, and whether B. so ap

Held, That the order was not plied the whole of it and what the reviewable here. 50 N. Y., 296. securities bought really were B.


All con:

accurately knew and could readily and charged that if the jury believed that explain, while plaintiff could not

defendant was under the honest supposition

that plaintiff was the culprit and it was a know except as the result of inves

reasonable supposition, that would be the tigation and inquiry.

end of the second cause of action. Held, Albert Stickney, for applt.

No error ; that the jury were merely called George H. Adams, for respt.

upon to assess the damages as to the first Held, That the facts justified a

cause of action if they found the second

was not sustained. resort to equity and a decree for Affirming S. C., 13 W. Dig., 550. an accounting ; that B., although not a trustee according to the strict The complaint in this action technical meaning of the word, is alleged two causes of action. First, quasi a trustee for the transaction for false imprisonment in procurin question, and therefore equity ing plaintiff's arrest, without a has jurisdiction. 2 H. Lords Cas., warrant, for the alleged offense of 28; 69 N. Y., 225; 1 Story's Eq. stealing and carrying away money Jur., $ 463; 4 Gif., 208, 456. of defendant by trick and de

Judgment of General Term, af- vice. Second, for malicious pro. firming judgment dismissing com- secution, in preferring a charge for plaint, reversed and new trial the same offense. The evidence granted.

showed that defendant was Opinion by Finch, J.

director in certain chemical works, cur.

situated in New Jersey; that a person he supposed was plaintiff

came to his house, in New York, FALSE IMPRISONMENT.

and represented that he had been FALSE PRETENSES.

sent there by the superintendent N. Y. COURT OF APPEALS. of the works to inform him that Thorne, respt., v. Turck, applt. had exploded, killing two men and

the glycerine factory at the works Decided Nov. 20, 1883.

destroying the factory; he stated

he had not received money enough A person whom defendant, who was director

of manufacturing; works in New Jersey, to pay his expenses and that he supposed was plaintiff, came to his house required $4 or $5 to take him back, in New York and represented that he had and defendant gave him $5 to pay been sent there by the superintendent of the

his expenses.

The statements works to inform him that a portion of the works bad exploded, and that he required made to defendant were false and money to take him back, not having receiv. he caused plaintiff's arrest in coned enough to pay his expenses ; and de- sequence thereof. The arrest was fendant, believing his statement, gave him

made without a warrant. A mofive dollars to pay his expenses. The statement made to defendant was false, and de

tion was made to dismiss the comfendant caused plaintiff's arrest in conse- plaint as to the first cause of acquence. In an action for false imprison- tion, on the ground that a felony ment, Held, That the offense was not lar

had been committed and that ceny, but merely false pretenses. The Court refused to dismiss as to the second

there was reasonable ground to cause of action (for malicious prosecution), I suspect that plaintiff was the

guilty party, and hence no war. fendant in reference to the first. rant was necessary to make the The jury were merely called upon arrest. This motion was denied. by the judge's charge to assess the

William P. Chambers, for damages as to the first cause of applt.

action, if they found the second N. C. Moak, for respt.

was not sustained. Held, Noerror ; that the offense Judgment of General Term, afproven was not larceny, but merely firming judgment on verdict for false pretenses, and came within plaintiff, affirmed. the provisions of $ 58, 3 R. S. Opinion by Miller, J. All con(6th ed.), 948, 23 N. Y., 252 ; cur. neither can it be said in law that there was an animus furandi on

DEEDS. the part of the person procuring the money. 67 N. Y., 322.

N. Y. COURT OF APPEALS. A motion was made to dismiss Bookman et al., applts., v. the complaint as to the second Kurzman, respt. cause of action. The motion was

Decided Dec. 14, 1883. denied. As to the second cause of

Where, in the description in a deed, the place action the Judge left it for the of beginuing of the premises conveyed was jury to say whether there was stated to be at a point on the westerly side probable cause, and charged them of an avenue, a certain distance from the that if they believed defendant

“southeasterly corner” of the avenue and

a street, and the description contained eviwas under the honest supposition

dence that the word the draughtsman intendthat plaintiff “was the culprit who ed to use was “southwesterly corner,” the had taken his money, and it was a

court should, in the interpretation of this dereasonable supposition; that it was

scription, read it so as to transform the word

“southeasterly"into “southwesterly," and such a conviction that a man of

defendant should be compelled to fulfill his ordinary prudence would have en- contract to purchase the premises described tertained, and that there was rea

said contract in accordance with the son and probable cause for Mr.

corrected description. Turck's supposing that this was In March, 1871, M. conveyed to the culprit, that would be the end F. certain premises -in

the of the plaintiff's action as to the Twelfth ward of the city of New second cause of action."

York, bounded and described as Held, No error ; that as the follows: Beginning at a point on second cause of action was distinct 'the westerly side of Second avenue from the first the jury could not distant 50 feet and 10 inches from have been prejudiced by the sub- the southeasterly corner of Second mission of the same to them in the l avenue and 111th street, thence form in which it was presented by westerly and parallel with said the judge ; that the granting of | 111th street, and partly through the motion to dismiss the com- a party wall, 80 feet, thence southplaint as to the second cause of erly and parallel with Second aveaction would not have aided de nue 50 feet, thence easterly and

Vol. 18.-No. 9a.

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