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and 120 New York State Reporter the statement, “be the said dimensions and distances more or less." Thus qualified, the description of the property as appearing on the map was deemed by the learned judge at Special Terin sufficient to obviate the objection made as to the fragment which had been conveyed to the railroad company. Although the fragment is small, considering its location as bearing upon and affecting the value of the land, we think it would have been equitable, at least, if plaintiff is to be compelled to take the title to the larger portion as thus diininished in value, that he should not be mulcted with interest upon the purchase price from the date of the sale. What, if anything, may have been received from the property by way of rents, went to the defendants; and, although we do not think that we should interfere with the judgment of the Special Term as to the validity of the title, the additional term imposed of interest was, in our opinion, inequitable.

We have not overlooked the contention of the defendants based upon what they claim to have been the knowledge of plaintiff's agent as to the condition of the property at the time of the sale. The fact that he made inquiries as to the rights of the railroad, and may have been familiar with the general situation of the property, did not, however, prevent the plaintiff from relying upon the contract of the defendants, whereby, as shown by the terms of sale, they undertook to sell and did sell to the plaintiff the lot including the fragment conveyed to the railroad. In other words, loose and indefinite knowledge possessed by the agent could not destroy the force and effect of a subsequent contract; and we have, therefore, approached the consideration of the questions involved, having in view the legal rights of the parties as fixed by their contract. Upon this branch of the case, we think the plaintiff is entitled to a specific performance to the extent that the defendants are able to comply, which will include a conveyance of the larger parcel, less the fragment in dispute; the defendants to be allowed to retain whatever they may have collected in the way of rents, and the plaintiff not required to pay any interest upon the amount of his bid.

As to the smaller parcel, we think the doubt arising as to the extent and location of the Schieffelin grant, of 1804, renders the title to the land unmarketable. The fact of the Schieffelin grant having been established, the whole controversy was waged as to its extent and location. Such grant appears upon two different city maps, made, respectively, by Serrell and Smith; and we have, in addition, the map prepared by the plaintiff's expert, which shows the water grant to Schieffelin located in accordance with what is its language and following the official maps, and would tend to prove that this grant overlaps and occupies part of the area of the smaller parcel here involved. There is, of course, the defendants' evidence, which would tend to show, by the language of the instrument, that the westerly boundary of the Schieffelin grant was fixed at low-water line. After thus locating the westerly boundary, it is argued that the lateral lines of the grant should be laid out perpendicularly to the general course of the shore of the Hudson river, and this may be done without any overlapping. There is, however, just as much reason for following the lines of the grant from 11th avenue and 136th street; and, as the lines from 11th

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avenue run in a northwesterly direction, if we continue them along in the same course without change or divergence they will bring us to the lot in question. Upon the evidence, therefore, a disputed question of fact is presented as to the exact location of the Schieffelin grant.

We have not overlooked the additional argument presented by the defendants, that, as the Schieffelin grant was not recorded in the register's office prior to the recording of the grant from the mayor to Devlin, it is therefore void as against them. The Schieffelin grant is dated December 4, 1804, and recorded in the book of water grants in the city comptroller's office. The Devlin grant was made in 1852, and! was duly recorded in the register's office. In support of the argument that the failure to record the Schieffelin grant in the register's office makes it void as against the subsequent recorded Devlin grant, we are referred to the case of Fort v. Burch, 6 Barb. 60, which is quoted with approval in Westbrook v. Gleason, 79 N. Y. 23. It appears, however, on the other hand, that the earliest recording act in relation to deeds of lands in the city of New York was passed in 1810 (chapter 175, Laws 1810), and the Legislature passed the general recording act in 1813 (chapter 97, p. 369, Rev. Laws 1813). The Schieffelin grant, therefore, was made at a time when there was no existing recording act; and the question is presented whether or not the Legislature has the power to declare deeds or grants, good when made, and which were not then required to be recorded, void as to subsequent purchasers if not recorded pursuant to some later provisions of law. The case of Varick's Ex’rs v. Briggs, 22 Wend. 543, is seemingly an authority for the proposition that the Legislature has not the power to render invalid a deed which was good when made, and when there was no recording act, by subsequent legislation rendering a failure to record such a deed void as to subsequent purchasers.

We have, therefore, a case wherein we are asked to resolve a disputed question of fact, or a doubtful question of law, in the absence of parties who, upon the settlement of such questions, would be entitled to be heard. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905. case is an authority for the proposition, which is now well settled, that “the purchaser of land at a judicial sale is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one, and the court cannot make it one by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested.” In this condition of the title, it would be improper for us to direct the conveyance of the parcel to the plaintiff, and impracticable to determine what, if any, allowance should be made him because of the diminution in value resulting from the doubt which exists as to whether the land is or is not affected by the Schieffelin grant.

The judgment should be accordingly modified by directing that, as to the smaller parcel, plaintiff be released from his purchase, and by striking out the interest on the purchase price of the larger parcel, and the costs of the court below; and, as so modified, the judgment should be affirmed, without costs to either party in this court. All concur, except VAN BRUNT, P. J., who dissents.

905. That and 120 New York State Reporter


(Supreme Court, Appellate Term. January 7, 1904.) 1. LANDLORD AND TENANT-DisFOSSESSION-RENT-NONPAYMENT-NOTICE TO


Defendant rented certain premises from plaintiff from month to month, the term beginning the 15th of each month. On August 13, 1903, plaintiff wrote defendant a letter, which was delivered to her on the 14th, sta ting that from the 15th of August her rent would be raised from $50 to $100 per month. Her rent not being paid, plaintiff, on August 17th, commenced summary dispossession proceedings without serving defendant with the five-days notice to quit, required by Laws 1882, p. 369, c. 303, to be served before the termination of the month, and without serving a three-days notice, as required in case of nonpayment of rent during the month, by Code Civ. Proc. $ 2231, subd. 2. Held that, in the absence

of such notices, a judgment ousting the tenant was unsustainable. Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Summary proceedings for the dispossession of a tenant by J. Blackburn Miller against Stella Lowe. From a judgment in favor of plaintiff, defendant appeals. Reversed.


Emanuel M. Friend, for appellant.
Arthur Furber, for respondent.

FREEDMAN, P. J. The testimony in this case establishes the fact that the defendant was a tenant from month to month, the term beginning upon the 15th day of each month. The only claim of right to dispossess the tenant, made by the landlord, is that on August 13, 1903, he wrote a letter to the tenant, which letter was delivered to her upon August 14, 1903, stating that from the 15th of August her rent would be raised from $50 to $100 per month. These proceedings were commenced on August 17, 1903. Being a monthly tenant, in the absence

а of the service of a notice to quit at least five days prior to the termination of the month for which she paid rent, the tenant had a right to retain possession of the premises for another month (Laws 1882, p. 369, c. 303), and she could only be thereafter dispossessed during that month for nonpayment of rent by the service of a notice demanding payment of rent within three days or the possession of the premises rented. Section 2231, subd. 2, Code Civ. Proc. Neither of such notices were served. These plain provisions of the statute cannot be evaded by omitting to serve the required five days' notice, and upon the last day of the term notifying the tenant that her rent is increased, and compel her to move without further notice. "If the landlord fails to give the notice five days before the end of the month, and the tenant holds over after the first of the next month, he becomes, by operation of law, a tenant for another month on the terms of the former hiring, the conventional relation still existing.

The five-days act imposes certain protective duties which must be observed. Their observance secures fair play, and nothing more. Upon the whole it will be found that the new act is fair and equitable alike to the landlord and tenant." McAdam on Landlord and Tenant, vol. 3 (3d Ed.) P. 143. The petition of the landlord avers an agreement of hiring at $100 per month, payable in advance, a demand for rent, its nonpayment, and a holding over after August 15th. The testimony of the landlord's only witness that the tenant never agreed to pay $100 per month, which she was told a day before August 15th would be the rental of the premises, which she had occupied under a previous rental of $50 per month, and for which she had paid up to August 15th, is sufficient to show that the allegations of the petition were not established upon the petitioner's own showing. None of the cases cited by the respondent support his contention. They are all cases where the right to the possession of the demised premises has been terminated either by expiration of term, by the contract of letting, by force of some statute, or by preliminary given of the statutory notice of five days. Neither does it appear that the question to be decided here is purely an academic one. There is nothing in the record to show that the tenant has voluntarily surrendered the premises. Statements contained in briefs of counsel form no part of the record.

Final order reversed, with costs. All concur.


(Supreme Court, Appellate Term. January 7, 1904.) 1. Costa-SECURITY-APPLICATION-TIME.

An application for security for costs must be made before answer, as a matter of right, or after answer. appealing to the court's discretion, must be made promptly, after the discovery of facts, which satisfactorily

explain why it was not made before answer. Appeal from Special Term.

Action by Efriam Ampel against Wolf Seifert and another. From an order denying a motion to vacate an order directing plaintiff to deposit or file security for costs, plaintiff appeals. Reversed.

See 84 N. Y. Supp. 122.


Henry Kuntz, for appellant.
Kenneson, Crain, Emley & Rubino, for respondents.

PER CURIAM. It is well settled that an application for security for costs must be made before answer as a matter of right, or, after answer, appealing to the court's discretion, must be made promptly after the discovery of facts, which satisfactorily explains why it was not made before answer. Segal v. Cauldwell, 22 App. Div. 95, 47 N. Y. Supp. 839; Henderson v. McNally, 33 App. Div. 132, 53 N. Y. Supp. 351. Assuming that the defendants did not discover plaintiff's nonresidence until the trial on March 16, 1903, no excuse is even sug

T 1. See Costs, vol. 13, Cent. Dig. $ 466.

86 N.Y.S.—2

and 120 New York State Reporter gested for delaying the application for security until the middle of September, 1903

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.



The courts cannot take judicial notice of the existing provisions of the health department. Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the Department of Health of the City of New York against the City Real Property Investing Company. From an order setting aside a judgment of the Municipal Court for plaintiff, plaintiff appeals. Affirmed.


George L. Rives (Frederick W. Steele, of counsel), for appellant. Carter & Ledyard (John Vimont Lyle, of counsel), for respondent.

PER CURIAM. There was no evidence of any kind adduced upon the trial showing the provision of the Sanitary Code or of the health laws, the violation of which was alleged as the basis of the recovery of a penalty. The courts cannot take judicial notice of the existing provisions of the health department. Section 941 of the Code of Civil Procedure prescribes the mode of proof in such cases.

The judgment was properly set aside upon motion, and the order is affirmed, with $10 costs and disbursements to respondent to abide the event.

GORODES v. BRUML. (Supreme Court, Appellate Term. January 7, 1904.) 1. SALES-ACTION FOR Price-COUNTERCLAIM-SUFFICIENCY OF Evidence.

In an action to recover for paper weights sold by plaintiff's assignor to defendant, the latter's counterclaim, based on an alleged breach of the assignor's agreement not to make paper weights for any one but defendant, to be sold at Coney Island, is not sustained by proof that defendant had purchased paper weights made by the assignor from dealers on the island, but not showing where such dealers obtained them, nor that the

assigpor sold them to any person other than defendant. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Michael Gorodes against Henry Bruml. Judginent for defendant, and plaintiff appeals. Reversed.


Rudolph Marks, for appellant.

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