notice given by the maker to an indorser should be held sufficient to charge the latter, yet this letter of the maker is faulty in that it neither states that any demand of payment had been made, that the note had been forwarded to and was at the place of payment, or that it was due. If the court should go to the extent of holding that the indorser is bound to carry in his memory the due date of a note that he indorses, and must presume that its payment has been demanded at the proper time and place, all which is necessary to make this letter sufficient notice, was due diligence shown in giv. ing the notice? The last day of grace was October 17th, and the letter was not written until the 19th, two days later. To constitute due diligence it should have been deposited in the post office in time to have departed in the earliest mail to the residence of Patterson that departed after business hours on the 18th. Lawson v. Bank, 1 Ohio St. 206. It is true that, if the defendant in error had chosen to give notice of nonpayment to the plaintiff in error, the plaintiff in error would have had one day after it received notice within which to give notice to Patterson, and in that case a notice given to the plaintiff in error to Patterson on the 19th of October would have been in time. 1 Pars. Notes & B. 513; Lawson v. Bank, 1 Ohio St. 206. Where, however, a holder of a promissory note passes by an immediate indorser, and serves notice of nonpayment upon one more remote, he cannot avail himself of the time the immediate indorser would have had to serve the remote one, if the holder had given notice to the former, but the holder in that case must give notice to the remote indorser within the same time that he is required to give it to the immediate indorser. 1 Pars. Notes & B. 514; Dobree v. Eastwood, 3 Car. & P. 250; Simpson v. Turney, 5 Humph. 419; Rowe v. Tipper, 13 C. B. 249; Marsh v. Maxwell, 2 Camp. 210, note. Therefore, if the letter of Fulton & Peters had been sufficient in form and substance to fix the liability of Patterson, it was mailed too late, and for that reason he was discharged.

This release of Patterson was an accomplished fact before the makers of the note applied to him to extend the time of payment. The omission of the bank to require payment, or, in default thereof, to give the necessary notice to charge Patterson, was caused by the solicitations of the makers, Fulton & Peters. The most careful scrutiny of the record fails to disclose that Patterson, up to this time, said or did anything to mislead the bank, or to induce it to relax its vigilance, or omit any step necessary in law to charge him as indorser. Patterson therefore had a perfect defense against any action to charge him as an indorser, unless, by his subsequent conduct, he has forfeited his right to set up this discharge. A subsequent promise to pay, when made with full knowledge of the facts, has been held to be evidence of a demand and notice, or to imply a previous waiver thereof. Myers v. Standart, 11 Ohio St. 29; Hibbard v. Russell, 16 N. H. 410; Robbins v. Pinckard,

5 Smedes & M. 51; Lewis v. Brehme, 33 Md. 412; Mc Phetres v. Halley's Ex'r, 32 Me. 72; Mense v. Osbern, 5 Mo. 544: Loose v. Loose, 36 Pa. St. 538; Killby v. Rochussen, 18 C. B. (N. S.) 357. In the case under consideration, however, no promise to pay was made by Patterson, unless the following letter, written by him to Fulton & Peters in reply to theirs of the 19th of October, asking for an extension of the time of payment, can be construed into such promise: "Dayton, O., October 20, 1887. Messrs. Fulton & Peters, Wilmington, Ohio-Gentlemen: Yours of 19th at hand, and we have instructed our bank (to whom the note belongs, we having discounted same) to grant extension to October 25th. Please honor it at that time, and much oblige, yours truly, S. J. PATTERSON." If this letter should be construed to contain an implied promise to pay the note, yet, as it was written without any knowledge on the part of the writer that he had been discharged from liability, it does not fall within the principles upon which a subsequent promise to pay has been held to bind an indorser. Tebbetts v. Dowd, 23 Wend. 379.

Is Patterson estopped to set up his discharge by reason of his letter of the 20th of October, 1888, granting an extension to the makers of the note? On October 17, 1888, the day the note matured, one of the makers, Fulton, was called into the bank, and his attention directed to it. The makers then had funds in the bank which could have been applied to its payment, but upon Mr. Fulton's representation that his firm was pressed for means it was induced to indulge them until they could apply to Patterson for a short extension of the time of payment, promising to pay it if Patterson refused to extend the time. After two days' delay they wrote the letter of October 19th, to which they received, in answer, Patterson's lettter of the 20th, granting the favor, of which the bank was at once advised. It thereupon continued to receive and pay out for the makers large sums of money, until November 1, 1888, on which day the makers assigned their property in trust for their creditors, having assets sufficient to pay only a few cents on the dollar of their indebtedness. No doubt, but for this letter of Patterson's, the bank would have charged this note against the makers' deposits, and in that way secured its payment. If Patterson had been informed of these facts, and chose to grant an extension to the makers, and the bank, relying thereon, had paid out all the funds of the makers before the assignment was made, and thus lost its means of indemnity, he should be held to abide the consequences. But he had no such knowledge. He neither knew that he had been discharged by the bank's neglect, nor that the bank had indemnity within its control. His granting the extension was an innocent act in itself, and he should not be charged with consequences that he had no reason to suspect would flow from it. On the contrary, the bank, defendant in error, was an actor in the entire transaction. With means of payment in its hands, it chose to indulge the makers in

tiff in error. It knew this indulgence was granted to the makers of the note expressly to enable them to apply for an extension of payment to one who, upon the face of the paper, was only liable in case it did the very duty that it must of necessity violate to grant the indulgence; and when the letter from Patterson was made known to it, and it proceeded to act upon the extension granted, it had no reason to believe that he had granted the extension with knowledge of the facts, and it took no action to advise him of their existence. Under these circumstances, the defendant in error must be held to have assumed the risks that naturally flowed from its actions, one of which was that Patterson might avail himself of a defense thus afforded to him by its own negligence. As upon the undisputed facts the judgment should have been for the plaintiff in error, it becomes unnecessary to consider the other questions that arise upon the record.

Judgment reversed, and cause remanded for further proceedings.

(132 N. Y. 533)

HAYDEN V. STATE.

(Court of Appeals of New York, Second Division. May 6, 1892.)

APPROPRIATION of WATERS BY THE STATE-WHEN SUFFICIENT.

A resolution declaring it the duty of the canal commissioners "to make a temporary appropriation of the waters" of a certain lake is too indefinite to effect a legal appropriation, in that it fails to state that all the water or any particular quantity was appropriated.

Appeal from the board of claims.

Claim by E. B. Hayden against the state of New York for laud appropriated. From the award made the state appeals. Affirmed.

The award and order of the board of claims was as follows:

The state conceded its liability for the land taken.

The Attorney General, for the State. H. V. Howland, for respondent.

FOLLETT, C. J. May 14, 1866, the state temporarily appropriated the water of Owasco lake and the Oriskany creek under this resolution: "Resolved, that the canal commissioners in charge of the middle and eastern divisions would not only be justified, but, in view of the past and present scarcity of water on the Port Byron and eastern portion of the long levels of the Erie canal, it is their duty, to make a temporary appropriation of the waters of the Owasco lake and the Oriskany creek, as provided by the statute. A claim for the damages under this appropriation was filed, but no appraisement was made, and the damages were afterwards included in the claim filed after the adoption of the resolution of June 19, 1867. June 19, 1867, the state permanently appropriated the Port Byron water power on the Owasco outlet, pursuant to the following v.30N.E.no.11-61

the permanent appropriation of the Port Byron water power on the Owasco outlet for the feeder to the Erie canal, this day submitted by the state engineer and surveyor, is hereby approved, and the water and lands necessary for said feeder are hereby permanently appropriated. November 9, 1867, the Haydens filed their claim for compensation for the permanent appropriation of the waters of Owasco creek. March 4, 1870, while the foregoing claim was pending, and before it was tried, resolutions were adopted by the canal board defining the quantity of water intended by the resolution of June 19, 1867, to be permanently appropriated, by which it was fixed at 3,600 cubic feet per minute, and not of the whole stream. The following is a copy of the resolutions of March 7, 1870: "Resolved, that the map for the permanent appropriation of the Fort Byron water power on the Owasco outlet for a feeder to the Erie canal, this day submitted by the state engineer and surveyor, is hereby approved, and the water and lands necessary for said feeder are hereby permanently appropriated; and whereas, doubts have arisen as to the extent of such appropriation, therefore resolved, that the water and lands appropriated, or intended to be appropriated, by this board was and is the water known as the 'Beach Mill Water Power,' then claimed by the Bank of Auburn, being equal to power for ten run of stone and machinery, or equal to a flow of 3,600 cubic feet per minute, under the bead of 27 feet, with the right and power to keep in repair the 'Parks Dam,' so called, at the head of the raceway; also the raceway known as the 'Beach Raceway,' with the rights and privileges that the said Bank of Auburn had and acquired under said beach; also the land necessary, and as described or delineated on said map, to convey the water to the canal from the end of said Beach raceway. In June and July, 1870, evidence in Hayden's Case was taken before the appraisers. March 11, 1871, the appraisers awarded him, as stated by the findings, $6,301.23, but, as stated by the evidence, he was awarded $6,651.23. November 17, 1871, the canal board increased the award to $8,183.74, which was paid. February 15, 1879, the state appropriated 368-1000 of an acre, and all the water in the raceway crossing it; under which appropriation this claim for damages was filed June 23, 1879. January 4, 1882, the canal appraisers awarded $21.49 for the land taken, but nothing for the water. The claimant appealed, and his appeal was heard before the board of claims, where, January 14, 1886, the award was reversed, and a rehearing ordered. On the retrial the award now appealed from was made.

The only question in this case is whether, under the permanent appropriation of June 19, 1866, the state acquired all of the water of Owasco creek. If it did, the allowance of $1,000 is wrong; if it did not, it is right. The attorney general contends that the state permanently appropriated all of the water of the Owasco outlet by the resolution of June 19, 1867, and that

the canal board had no power, by the subsequent resolutions of March 4, 1870, to limit the quantity of water taken to "3,600 cubic feet per minute, under the head of 27 feet, though the resolution was passed before the damages were assessed. To make a legal and permanent appropriation of land or water for the use of a canal, the quantity must be definitely ascertained and described, so that the owner may know how much he has lost, and what he is entitled to be compensated for. If the water to be appropriated is described as all in a certain lake or all flowing in a particular stream, such would undoubtedly be a sufficiently definite description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it, was appropriated, and the description was too indefinite to effect a legal appropriation. The original attempt to appropriate not being effective, the officers of the state had power, by subsequent action, to make a definite and permanent appropriation of a given quantity of water. Under this limited appropriation the claimants' damages were ascertained and paid, and it would be inequitable to allow the state to successfully assert that the award was for all of the water, instead for 3,600 cubic feet per minute. The report of the canal appraisers (Senate Doc. No. 56) made in 1869 was made before the claim filed November 9, 1869, was tried, the claimant was not a party to it, and it is not binding on him. The board of claims well decided, on sufficient legal evidence, that the state had not, prior to the appropriation of February 15, 1879,

taken all of the water from the stream.

The order and award should be affirmed, with costs. All concur.

(132 N. Y. 392)

HARRIS V. STRODL. (Court of Appeals of New York, Second Division. April 19, 1892.) WILLS-POWERS-TITLE.

Testator devised all his property to his widow during her life or widowhood, and directed that on her remarriage the estate should be sold, and one third of the proceeds paid to his widow, and the residue divided equally between his children and the issue of any deceased child, and that on the widow's death without remarriage the whole estate should be divided in the same way. The executors were given "full power to sell any and all of" testator's real estate, "whenever they may think it best to do so, and on such terms as they may think desirable." Un

der this power the executors conveyed a portion of the real estate by a deed reciting the same consideration as a deed executed at the same time for the same land, and to the same parties, by testator's widow and children. It was not claimed that the executors, as such, received any consideration. Held, that such sale was not a valid execution of the power conferred by the will, and that such grantee did not take a perfect title. 10 N. Y. Supp. 859, affirmed.

Appeal from supreme court, general term, first department.

Action by S. Harris against J. H. Strodl. From a judgment of the general term, affirming a judgment for plaintiff entered at special term, defendant appeals. Affirmed.

The other facts fully appear in the following statement by LANDON, J.:

The action was brought for the specific performance of a contract made by the parties February 16, 1888, for the sale by the defendant to the plaintiff of a lot in the city of New York for the price of $24,900 by full covenant deed to be delivered April 15, 1888, conveying to plaintiff title in tee simple, free from incumbrances, except as to outstanding tenancies and a mortgage, not here material. The plaintiff paid $1,000 upon the contract at its date, and necessarily expended $224.10 in examining as to the title, and was ready and willing to perform. The defendant tendered a deed of the premises executed by himself, which plaintiff refused to accept, upon the ground that the deed under which defendant claimed did not convey to him full title, for reasons discussed in the opinion. The complaint asks, in case specific performance could not be made, that he recover the $1,000 advanced by him, and his said expenses. The trial court directed judgment in favor of the plaintiff for said sums with costs. Further facts are stated in the opinion.

F. J. Moissen, for appellant. David McClure, for respondent.

LANDON, J., (after stating the facts.) John George Vix died in 1874, in the city of New York, seised of the premises in question as owner in fee simple, leaving his widow, Salomea, and his three sons, Jacob, George, and Edward, all of full age, surviving him. He also left a will, which was afterwards duly proved, the material parts of which are as follows: "First. I devise and bequeath unto my beloved wife, Salomea Vix, all of my estate, both real and personal, of which I may be seised at the time of my decease; to have and to hold the same unto her for and during the time of her natural life, or until she shall remarry, to receive the rents, issues, and profits thereof, and apply the same as she shall see fit. Second, Should my said wife marry again after my death, then, and in such case, I do direct that all my said estate, real and personal, hereinafter be sold by my executors

named, either at public or private sale, and one third of the proceeds thereof paid to my said wife, and that the remaining two thirds thereof be divided equally between my children, share and share alike; the children of any of my said children who may have died to receive the amount the parent would be entitled to if living. Third. Should my said wife die without marrying again, then, upon her death, I hereby direct that my said estate shall be divided between them, share and share alike; the children of any deceased child to receive the same proportion the parent would have received if living, the devisees in this clause being my children or the children of any of them who may have died. Fourth. I hereby give unto my said executors full power to sell and convey any and all of my said real estate whenever they may deem it best to do so, and upon such terms as they may think desirable. Lastly. I hereby nominate and appoint my said wife, Salomea, to be

executrix, and my friend Michael Schmidt to be executor, of this my last will and testament, hereby revoking all former wills by me made." The widow is living, and has not remarried. The three sons are living; Edward and George each have children; Jacob has none. Schmidt, the executor, is also living. February 1, 1886, the said widow and the three sons of the testator, the wife of Edward uniting in the conveyance, conveyed the premises in question to the defendant for the expressed consideration of $19,500. Upon the trial the defendant produced a deed dated February 1, 1886, of the said executors of the will of the testator to the defendant, of the premises. This deed was acknowledged by one executor December 5, 1888, and by the other January 31, 1889. This deed recites the consideration,$19,500,-being the same as recited in the deed given defendant by the widow and three sons. It is not claimed that the executors, as such, received any consideration whatever. The action was commenced in April, 1888.

* *

It is obvious from the terms of the will that, if any of the children of the testator should die before the remarriage of the testator's widow, or if she should not remarry, or any of them should die in her lifetime, the children of such dereased child would be substituted in the parent's place as the ultimate devisees of the portion of the estate which the parent would take if living. The deed from the testator's children to the defendant conveyed what they had a right to convey, namely, a title subject to be defeated in case the contingency contemplated by the testator should occur. This position is not contested by the appellant. But it is contended that the power of sale given to the executors by the fourth clause of the will is ample, and that the deed given by them to the defendant cures the defect. The power is "to sell and convey whenever they may deem it best to do so, and upon such terms as they deem desirable." It is contended that they deemed it best to convey to the defendant for the purpose of vesting in him the remnant of the title which remained unconveyed after the conveyance of the widow and children, and that they deemed the confirmation of that conveyance upon the consideration expressed in it desirable terms. This may meet the letter of the power, but does not satisfy its spirit. The widow and three children of the testator having conveyed all their estate in the premises, nothing remained for the executors to convey but the future contingent estates of the grandchildren. Clearly they ought to have so sold these as to secure the proceeds to the grandchildren in the event of the contingency happening, making them the ultimate devisees of the testator. But as the case is presented the executors made the conveyance to the defendant so as to enable the takers of the defeasible estates to keep and convert to their own use the full price of the whole estate, as if their children had no contingent future estate in it. The plaintiff has full knowledge of all these facts. What defense could be make to the claim of the grandchildren if,

as is not improbable, they become the testator's devisees? McMurray v. McMurray, 66 N. Y. 175. The question is an important one. The general rule is that to the due execution of a power there must be a substantial compliance with every condition required to precede or accompany its exercise. Allen v. De Witt, 3 N. Y. 276; Roome v. Philips, 27 N. Y. 357; Russell v. Russell, 36 N. Y. 581; Adair v. Brimmer, 74 N. Y. 539; Bank v. Holden, 105 N. Y. 415, 11 N. E. Rep. 950. Two cases recently before this court under the same will illustrate both the valid and invalid execution of a power much like the oce before us. Scholle v. Scholle, 113 N. Y. 261, 21 N. E. Rep. 84; Insurance Co. v. Woods, 121 N. Y. 302, 24 N. E. Rep. 602. It may be that the grandchildren will never take under the will, or, if they should, that a satisfactory answer to the question we have suggested could be made. But the purchaser is entitled to a marketable title. He should be protected against the risk suggested. Moore v. Appleby, 108 N. Y. 241,, 15 N. E. Rep. 377; Church Home v. Thompson, 15 N. E. Rep. 195. The judgment should be affirmed. All concur.

(132 N. Y. 363)

HAEBLER et al. v. MYERS et al. (Court of Appeals of New York, Second Division. April 19, 1892.)

JUDGMENT- REVERSAL-EFFECT- ACTION FOR MONEY HAD AND RECEIVED-ATTACHMENT.

1. The remedies provided by Code Civil Proc. §§ 445, 1005, 1216, 1292, 1323, 2142, 2263, and 3058, for the recovery of property or rights lost through an erroneous judgment, which is afterwards reversed, are not exclusive of the common-law right to bring an independent action to recover such property.

2. Where money held by a sheriff under an attachment is paid over by him to a subsequent lienor by order of court, and such order is afterwards reversed, the attacbing creditor may, in an action for money had and received, recover from the lienor the amount so paid.

11 N. Y. Supp. 312, reversed.

Appeal from supreme court, general term, first department.

Action by Theodore Haebler and others against Elijah Myers and others for money had and received. Defendants obtained judgment on demurrer, which was affirmed by the general term. Plaintiffs appeal. Reversed.

The other facts fully appear in the following statement by VANN, J.:

This was an action for money had and received. In April, 1888, the sheriff of the city and county of New York received the sum of $900 "by reason of" the levy of an attachment which the plaintiffs had caused to be issued in an action brought by them against one Bernharth and others. On October 30th the defendants, "as subsequent lienors," procured an order restraining the sheriff from paying over to the plaintiffs the money so received by him, and on November 22d they procured another order, granted at special term, on notice, vacating said attachment. "After said attachment was so vacated, and in consequence thereof, and not otherwise, said sheriff paid over to the defendants, as subsequent lienors, said $900 which he had received under the attach

"

ment issued to him, as aforesaid, by the plaintiffs. On the 18th of April, 1889, the order vacating the attachment was affirmed by the general term, (4 N. Y. Supp. 873;) but on October 31, 1889, the court of appeals reversed the orders made by the general and special terms, and denied the motion to vacate the attachment, (22 N. E. Rep. 167.) November 12, 1888, the plaintiffs recovered judgment in the action brought by them against said Bernharth and others for the sum of $1,257.91, but the execution issued thereon to said sheriff was returned wholly unsatisfied, and the judgment is still unpaid. The plaintiffs demanded restitution from the defendants, which was refused, and thereupon they brought this action, and, after alleging the foregoing facts, in substance, asked that the defendants be ordered and decreed to make restitution to the plaintiffs of the said sum of $900, with interest thereon from the 22d day of No. vember, 1888, besides costs of this action. The defendants demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of ac tion. The special term, in sustaining the demurrer, held that the defendants had received nothing from the plaintiffs which they were bound to restore to them, as the money in question belonged to Bernharth and others until it was devoted to the payment of the defendants' execution. 11 N. Y. Supp. 7. The general term affirmed the judgment upon the same ground, but also suggested that it was the duty of the plaintiffs to obtain a stay of proceedings if they wished to protect their lien by a successful appeal.

Marshall P. Stafford, for appellants. Michael H. Cardozo, for respondents.

VANN, J., (after stating the facts.) Restitution was a remedy well known to the common law. Its object was to restore to an appellant the specific thing, or its equivalent, of which he had been deprived by the enforcement of the judgment against him during the pendency of his appeal. It was not created by statute, but was exercised by the appellate tribunal as incidental to its power to correct errors, and hence the court not only reversed the erroneous judgment, but restored to the aggrieved party that which he had lost in consequence thereof. It was usually a part of the judgment of reversal which directed "that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid." A writ of restitution was thereupon issued, provided the amount that the appellant had lost or paid under compulsion appeared of record, as by the return of an execution satisfied; otherwise process in the nature of an order to show cause was first issued, known as a "scire facias quare restitutionem habere non debet." Toml. Law Dict. tit. Restitution; Lil. Abr. 472; Rolle, Abr. 778; Westerne v. Creswick, 4 Mod. 161; Wilkinson's Case, Cro. Eliz. 465; Goodyere v. Ince, Cro. Jac. 246; Manning's Case, 8 Coke, 94; 2 Tidd, Pr. 1033; 1 Burrill, Pr. 292. In this state the practice is now regulated by statute, and almost every conceivable case is provided

2

* *

for. Code Civil Proc. §§ 445, 1005, 1216, 1292, 1323, 2142, 2263, 3058. Section 1323 seems especially adapted to the facts set forth in the complaint, as it provides that, "when a final judgment or order is reversed or modified upon appeal, the appellate court may make or compel restitution of property, or of a right, lost by means of the erroneous judgment or order." This is a part of section 330 of the Code of Procedure, under which it was held that the power conferred was cumulative, and did not take away the common-law rights of a successful appellant. Lott v. Swezey, 29 Barb. 87, 88. There were earlier, though less complete, statutes upon the subject. Laws 1832, c. 128. § 1; 2 Rev. St. p. 509, § 13; 1 Rev. Laws, p. 96, §§ 2, 5. The statutory remedy is exercised by the entry of a judgment or order in the action in which the erroneous judgment or order was rendered or made. We think that the remedies provided by statute are not exclusive, and that they were enacted, in recognition of the right of restitution as it existed at common law, to furnish additional means of enforcing that right.

We have before us an effort to procure restitution by an independent action in the nature of indebitatus assumpsit, based upon the theory that the law will imply a promise from the conduct of the defendants and the circumstances of the case. It has been repeatedly held that such an action will lie to recover back money paid on a judgment pending an appeal which resulted in a reversal. The subject was carefully examined in Clark v. Pinney, 6 Cow. 299, where it was held that the court would not compel the party to resort to the antiquated remedy of scire facias, but would permit a recovery by a direct action as for money had and received. In delivering the opinion, Chief Justice SAVAGE said: "The general proposition is that this action lies in all cases where the defendant has in his hands money which, ex æquo et bono, belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment of the money, is reversed, the legal conclusiou is irresistible that the money belongs to the person from whom it was collected." This principle was recognized by the supreme court of the United States in Bank of the United States v. Bank of Washington, 6 Pet. 8, where it was declared that "on the reversal of a judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost," and that he might proceed by action, scire facias, or order. The authorities uniformly support this position, and out of many that might be cited the following are sufficient to illustrate the subject: Sturges v. Allis, 10 Wend. 355; Maghee v. Kellogg, 24 Wend.32; Norton v. Coons, 3 Denio, 130; Langley v. Warner, 1 Sandf. 209; Lott v. Swezey, supra; Kidd v. Curry, 29 Hun, 215; Wright v. Nostrand, 100 N. Y. 616, 3 N. E. Rep. 78; Insurance Co. v. Heath, 95 Pa. St. 333. The right of the plaintiffs to recover could hardly be questioned if the money had ab