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2 Wend., 243, and defendants could acquire no right under it. Judgment of General Term, reversing judgment dismissing complaint, affirmed, and judgment absolute for plaintiff on stipula tion.

an agreed annual rental of $8,400, which he expressly covenanted to pay, which sum was the interest upon a certain mortgage of $120,000, given by said road to secure the holders of bonds for that amount which had been negotiated

Opinion by Danforth, J. All by said company. The lease pro

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N. Y. COURT OF APPEALS.

Woodruff, applt., v. The Erie R. Co. et al., respts.

Decided Nov. 20, 1883.

Plaintiff leased the property of a railroad for a term of years at an annual rental equal to

the interest on a mortgage given by the railroad company to secure bonds. The lease provided that plaintiff might be relieved from payment of rent on paying the principal of the mortgage and also for a surrender at the end of the term. Plaintiff afterwards leased all the property to the Erie Railway Co. for the term and on similar covenants. In an action to compel the receiver of the Erie Co. to pay for the use of the property, Held, That neither of the leases were void as ultra vires, malum in se, malum prohibitum or contrary to public policy; that defendant, as far as his contract has been executed, is estopped from contesting the title of his lessor or the validity of the conveyance by which he acquired possession of the property, and this estoppel applies to all who claim through or under him; that plaintiff by his lease to the Erie Co. became surety for payment of the rent and had a right to call upon it to indemnify and protect him from his collateral liability.

Reversing S. C., 13 W. Dig., 162.

vided that plaintiff might, by paying the principal of said mortgage, be relieved from further payment of rent, save a nominal sum, and should be entitled to retain possession of the property to the end of his term. It also provided for a surrender of the property at the expiration of the term or the annulment of the lease for other causes. Plaintiff entered into possession under this lease. Subsequently, in 1871, plaintiff leased all of the property acquired by him under the lease from the E. & G. V. R. Co. to the Erie R. Co. for the term and upon covenants and conditions similar to those contained in the lease to him. Plaintiff brings this action by leave of the court to require the receiver of the Erie R. Co. to pay for the use of the leased property during its occupancy and enjoyment by him. The receiver claims that the lease by which plaintiff acquired possession of and an interest in the E. & G. V. R. Co. is ultra vires, and that the title thereby claimed by plaintiff as well as that attempted to be conveyed to the Erie R. Co. was invalid and imposed no legal obligation upon him, and refuses to pay the rent reserved, but has continued to occupy and use the demised prop

Plaintiff acquired under a lease an interest in the property of the E. & G. V. R. Co., a corporation duly organized to build and operate the road in question, forerty.

J. A. Van Derlip, for applt. E. C. Sprague, for respts. Held, That this action was maintainable; that neither the lease to plaintiff, nor the one from plaintiff to the Erie R. Co. was void as being malum in se, malum prohibitum, or contrary to public policy; nor can they be avoided by the respective lessees thereof on account of any want of power on the part of the respective lessors to make such contracts. Laws 1839, Chap. 213; 22 N. Y., 258; 63 id. 62; 46 N. Y., 644; 77 id. 234; 80 id. 27; 86 id., 112; Laws 1847, Chap. 222; Laws 1855, Chap. 302; Laws 1864, Chap. 582; Laws 1867, Chap. 254; Laws 1869, Chaps. 237 & 844; Laws 1880, Chap. 349. Defendant, so far as his contract with plaintiff has been executed, is estopped from contesting the title of his lease or the validity of the conveyance by which he has acquired possession of the leased property. 1 Platt on Leases, 57, 58; 15 N. Y., 330; 9 id., 45. The estoppel which binds the tenant also binds all who claim through or under him. Taylor's Landlord and Tenant, §§ 89, 90, 91, 705, 657; Arch. Landlord and Tenant, 219.

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J. was appointed the E. & G. V. R. Co. was named as one of the leased roads, and its rental was described as $8,400 per annum. The orders by which J. was appointed receiver have not been modified or appealed from.

Held, That the parties to the action in which J. was appointed receiver cannot now be allowed to dispute or question the power conferred upon him; that J., by entering into the possession of and occupying the property leased by plaintiff to the Erie R. Co., incurred a liability for payment of the rent under the lease; that not having attempted to secure a modification of the terms of the lease. with the consent of the various parties interested, or to repudiate the lease and surrender the property, J. must be held to have continued his acceptance under the terms and conditions of plaintiff's lease as to the payment of rent thereon.

Although plaintiff by virtue of his covenant with the E. & G. V. R. Co. was originally primarily liable to pay the annual rent, yet through his covenant with the Erie R. Co., so far as the latter was concerned, he became a mere surety for the payment of the debt and had the right to call upon it to indemnify and protect him from his collateral liability, and can maintain an action in equity to compel the Erie R. Co. to perform its covenant without first paying the debt, and is not limited to his action on the covenant. 10 Paige, 595; 60 Eng. Ch., 27; 7 All., 371; 11 id., 506.

Judgment of General Term, reversing judgment of Special Term for plaintiff, reversed, and judgment of Special Term affirmed. Opinion by Ruger, Ch. J. All

concur.

APPEAL.

N. Y. COURT OF APPEALS.

McKenna, admrx., respt., v. Bolger, applt.

Decided Dec. 14, 1883.

An order of General Term denying motion to dismiss an appeal will not be reviewed in Court of Appeals where the appeal papers do not show that such order was not one within the discretion of the court.

This was an action to recover a sum alleged to be due on a contract. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained at Special Term and judgment ordered for the defendant, but with leave to plaintiff to amend his pleading. Instead of doing so he appealed from the judgment to the General Term, where a motion to dismiss the appeal was denied, and from that decision an appeal is taken by defendant to this court. There is nothing in the appeal papers to show upon what ground the motion was made, nor does it appear that the order was not one within the discretion of the Supreme Court.

John McCrone, for applt. M. J. McKenna, for respt. Held, That the order was not reviewable here. 50 N. Y., 296.

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Plaintiff entrusted B, with certain moneys to be used in making a joint purchase of the interest of one W. in certain property, the value of which was not known, but B. was to pay for plaintiff's half whatever he paid for his own, not exceeding the amount entrusted to him. B. did not account, and plaintiff could not ascertain without investigation and inquiry whether B. so applied the whole amount or what the securities bought were. Held, That the facts justified a resort to equity and a decree for an accounting.

This action was brought to compel an accounting by the defendant B. of a joint purchase by him, in which the parties interested were plaintiff and defendants B. & M. The plaintiff's interest was one-half the property purchased and one-half of the purchase money. It appeared that B. was the agent of plaintiff to purchase for him of one P. the one-half of the interest of one W. in certain property, whatever that, in fact, might prove to be beyond what was certainly known; that B. was to pay for such half precisely what he himself paid for the remaining half, but not to exceed $25,000; that B. was entrusted with plaintiff's money to be used in effecting such purpose, and whether B. so applied the whole of it and what the securities bought really were B.

accurately knew and could readily explain, while plaintiff could not know except as the result of inves tigation and inquiry.

Albert Stickney, for applt. George H. Adams, for respt. Held, That the facts justified a resort to equity and a decree for an accounting; that B., although not a trustee according to the strict technical meaning of the word, is quasi a trustee for the transaction in question, and therefore equity has jurisdiction. 2 H. Lords Cas., 28; 69 N. Y., 225; 1 Story's Eq. Jur., 463; 4 Gif., 208, 456.

Judgment of General Term, affirming judgment dismissing complaint, reversed and new trial granted.

Opinion by Finch, J.

cur.

All con

FALSE IMPRISONMENT.
FALSE PRETENSES.

N. Y. COURT OF APPEALS.

and charged that if the jury believed that defendant was under the honest supposition that plaintiff was the culprit and it was a reasonable supposition, that would be the end of the second cause of action. Held, No error; that the jury were merely called upon to assess the damages as to the first cause of action if they found the second was not sustained.

Affirming S. C., 13 W. Dig., 550.

The complaint in this action alleged two causes of action. First, for false imprisonment in procuring plaintiff's arrest, without a warrant, for the alleged offense of stealing and carrying away money of defendant by trick and device. vice. Second, for malicious prosecution, in preferring a charge for the same offense. The evidence showed that defendant was a director in certain chemical works, situated in New Jersey; that a person he supposed was plaintiff came to his house, in New York, and represented that he had been sent there by the superintendent of the works to inform him that the glycerine factory at the works

Thorne, respt., v. Turck, applt. had exploded, killing two men and

Decided Nov. 20, 1883.

A person whom defendant, who was director of manufacturing, works in New Jersey, supposed was plaintiff, came to his house in New York and represented that he had been sent there by the superintendent of the works to inform him that a portion of the works had exploded, and that he required money to take him back, not having received enough to pay his expenses; and defendant, believing his statement, gave him five dollars to pay his expenses. The statement made to defendant was false, and defendant caused plaintiff's arrest in consequence. In an action for false imprison

ment, Held, That the offense was not larceny, but merely false pretenses. The Court refused to dismiss as to the second

cause of action (for malicious prosecution),

destroying the factory; he stated he had not received money enough to pay his expenses and that he required $4 or $5 to take him back, and defendant gave him $5 to pay his expenses. The statements made to defendant were false and he caused plaintiff's arrest in consequence thereof. The arrest was made without a warrant. A motion was made to dismiss the complaint as to the first cause of action, on the ground that a felony had been committed and that there was reasonable ground to suspect that plaintiff was the

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N. C. Moak, for respt. Held, No error; that the offense proven was not larceny, but merely false pretenses, and came within the provisions of § 58, 3 R. S. (6th ed.), 948, 23 N. Y., 252; neither can it be said in law that there was an animus furandi on the part of the person procuring the money. 67 N. Y., 322.

A motion was made to dismiss the complaint as to the second cause of action. The motion was denied. As to the second cause of action the Judge left it for the jury to say whether there was probable cause, and charged them that if they believed defendant was under the honest supposition that plaintiff "was the culprit who had taken his money, and it was a reasonable supposition; that it was such a conviction that a man of ordinary prudence would have entertained, and that there was reason and probable cause for Mr. Turck's supposing that this was the culprit, that would be the end of the plaintiff's action as to the second cause of action."

Held, No error; that as the second cause of action was distinct from the first the jury could not have been prejudiced by the submission of the same to them in the form in which it was presented by the judge; that the granting of the motion to dismiss the complaint as to the second cause of action would not have aided de

Vol. 18.-No. 9a.

fendant in reference to the first. The jury were merely called upon by the judge's charge to assess the damages as to the first cause of action, if they found the second was not sustained.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Miller, J. All con

cur.

DEEDS.

N. Y. COURT OF APPEALS. Bookman et al., applts., v. Kurzman, respt.

Decided Dec. 14, 1883.

Where, in the description in a deed, the place of beginning of the premises conveyed was stated to be at a point on the westerly side of an avenue, a certain distance from the "southeasterly corner" of the avenue and a street, and the description contained evidence that the word the draughtsman intended to use was "southwesterly corner," the court should, in the interpretation of this description, read it so as to transform the word "southeasterly" into "southwesterly," and defendant should be compelled to fulfill his contract to purchase the premises described in said contract in accordance with the corrected description.

In March, 1871, M. conveyed to

F. certain premises "in the Twelfth ward of the city of New York, bounded and described as follows: Beginning at a point on the westerly side of Second avenue distant 50 feet and 10 inches from the southeasterly corner of Second avenue and 111th street, thence westerly and parallel with said 111th street, and partly through a party wall, 80 feet, thence southerly and parallel with Second avenue 50 feet, thence easterly and

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