and 140 New York State Reporter In some cases courts have allowed a plaintiff to prove the value of the contract to the grantor or the amount that it would cost to comply with the contract by the grantee and imposed a lien upon the property for that amount, but it seems to me clear that this is the extent to which the plaintiff in such an action can be given relief in a court of equity. No facts were alleged which would justify the court in holding this agreement to be a condition subsequent which would entitle the plaintiff to a recovery of the property upon a breach of the contract. The plaintiff conveyed the property relying upon the promises of the defendant to comply with her contract; and certainly all that the plaintiff is entitled to recover is the damages sustained by a breach of the contract and subjecting the property conveyed to a lien to secure the amount of such damages when ascertained. If the plaintiff is paid the damages caused by a breach of the contract, he would be in exactly the same position as if the contract had been complied with. As there is no allegation as to the amount due to the plaintiff upon the breach of the contract and no demand made to recover that amount, I do not think that relief can be granted in this action. I think, therefore, that the demurrer should have been sustained. GOEPEL V. ROBINSON MACH. CO. (Supreme Court, Appellate Division, First Department. November 22, 1907.) 1. APPEAL-REVERSAL-EFFECT OF DECISION-RESTITUTION. Where an order vacating an attachment was reversed on appeal and a clause directing a return of the property to the sheriff was stricken from the order because the release of the property to defendant was not shown by the record, a subsequent motion in the lower court for restitution should not be denied on the ground that the relief had been refused by the Appellate Court. 2. SAME-ERROneous Judgment-Release OF PROPERTY-RESTITUTION-JURIS DICTION. Under Code Civ. Proc. § 1323, providing that, when a final judgment is reversed, "the Appellate Court or the General Term of the same court" may order restitution, the Special Term is not deprived of the power to order restitution in such case; the statute merely conferring on the various appellate courts the same power enjoyed by the trial court to decree restitution. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 88 4621-4625, 4701-4709.] Houghton, J., dissenting. Appeal from Special Term. Action by Charles F. Goepel against the Robinson Machine Company. From an order denying a motion for restitution to the sheriff of property attached, but returned to the defendant on vacating the attachment, or, in lieu thereof, to pay the value of the property, plaintiff appeals. Order reversed, and motion granted. See 103 N. Y. Supp. 5. Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, HOUGHTON, and SCOTT, JJ. Don R. Almy, for appellant. Philip K. Walcott, for respondent. INGRAHAM, J. This motion was denied upon the ground that the relief here sought had been refused by this court, as a clause granting this portion of the motion was stricken from the order of the Appellate Division when the order vacating the warrant of attachment was reversed. The learned court at Special Term was mistaken as to the reason why this clause was stricken from the proposed order of this court. Upon that appeal it did not appear by the record that the property levied on under the warrant of attachment had been released from the levy and returned to the defendant, and, as that appeal had to be decided, upon the record it was quite improper to insert in the order a provision based upon a fact which did not appear upon the record, but which had to be shown by affidavit. The proper proceeding was to make a motion for what was in effect a restitution of the right lost by the plaintiff in consequence of the erroneous provision of the order appealed from. The defendant had no notice of such a motion, except so far as it was contained in the notice of settlement of the order which contained the provisions for restitution, and, as the defendant objected to the inclusion of that provision in the order, it was stricken out as not then properly before the court. The motion should not therefore have been denied upon the only ground upon which the learned judge at Special Term based his decision. The defendant, however, takes the further objection that the Special Term had no power to make the motion, but it should have been made at the Appellate Division, and bases this contention upon section 1323 of the Code of Civil Procedure, which provides that: "When a final judgment or order is reversed or modified, upon appeal, the Appellate Court, or the General Term of the same court, as the case may be, may make or compel restitution of property, or of a right, lost by means of an erroneous judgment or order; but not so as to affect the title of a purchaser in good faith and for value." In Mossein v. Empire State Surety Co., 117 App. Div. 820, 102 N. Y. Supp. 1013, it was held by the Second Department that this provision which authorized an Appellate Court to make restitution did not affect the inherent jurisdiction of the Special Term to order restitution, but was simply a grant of the like power which was inherent in the court at Special Term to the Appellate Court, which reversed the order or judgment appealed from. As this prescribed a rule of practice, we think we should follow the Second Department, and affirm the right of the Special Term to entertain an application for restitution where a right has been lost to a party to an action or special proceeding by virtue of an order which subsequently upon appeal was reversed; but I fully agree with the Second Department. This provision granting power to the Appellate Court is general, applying to the Court of Appeals as well as to the several branches of the Supreme Court authorized to hear appeals. Without this provision, neither this court nor the Court of Appeals on an original application would have power to decree restitution. The application would have to be. made at the Special Term. It seems to me that this authority which and 140 New York State Reporter is permissive merely was intended to confer upon appellate courts the same power that had always resided in and been exercised by the court of the first instance. It is to me clear that it could not have been the intention of the Legislature to take away the jurisdiction of the Supreme Court to enforce its own orders or to correct any mistake that has been made in consequence of an erroneous order or judgment where the erroneous order or judgment had been reversed by an appellate court. When the Appellate Court was not in session, no matter what necessity there was for judicial action, no relief could be granted until the Appellate Court reconvened and the motion could there be made. I think the Special Term, therefore, had power to entertain the application, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur, except HOUGHTON, J., who dissents. HOUGHTON, J. (dissenting). The plaintiff obtained an attachment which was set aside. On appeal to this court the order setting aside the attachment was reversed, and it was thus restored. After the vacating of the attachment the defendant removed the property levied upon out of the jurisdiction of the sheriff. I agree that this property should be restored, but I do not think the Special Term had any power to entertain a motion for its restoration. The motion should have been made in this court where the reversal was had. The original order setting aside the attachment was a final order so far as the rights under the attachment were concerned. Section 1323 of the Code of Civil Procedure provides: "When a final judgment or order is reversed or modified upon appeal, the Appellate Court, or the General Term of the same court, as the case may be, may make or compel restitution of property, or of a right, lost by means of the erroneous judgment or order; but not so as to affect the title of a purchaser in good faith or for value." In Hayes v. Nourse, 25 Abb. N. C. 95, 7 N. Y. Supp. 656, 11 N. Y. Supp. 825, power of a Special Term to make an order for restitution on reversal was discussed, and it was held that the Special Term had no power, but that the same was vested either in the General Term of the court of common pleas, through which the judgment had passed, or in the Court of Appeals where the judgment was reversed. The proper interpretation of section 1323 of the Code was discussed in Carlson v. Winterson, 146 N. Y. 345, 40 N. E. 995, and in his opinion Haight, J., in the expressed hope that there might be no doubt in the future as to the court in which a motion for restitution should be made, took pains to state the proper practice to be pursued. He says: "It follows that the motion may be made in the court that reverses the judgment, or it may be made at the General Term of the court to which the case has been remitted and is pending if that court has a general term. If not, the motion must be made in the court that reversed the judgment." Of course, what is said respecting a judgment applies to the order mentioned in the same section, and the rule would seem to be very plain. Mossein v. Empire State Surety Co., 117 App. Div. 820, 102 N. Y. Supp. 1013, is not to the contrary, nor an authority upon the question involved. In that case the question discussed was as to the power of the Special Term to direct restoration of money which it had previously ordered paid into court. Of course, the Special Term had power to do that. No question of the power of the Special Term to order restoration after reversal was involved, and nothing was said on that subject. For these reasons, I think the Special Term was right in denying the restoration asked for, and that its order should be affirmed with leave to the plaintiff to move in this court. KEVILLE v. KEVILLE. (Supreme Court, Appellate Division, Second Department. November 22, 1907.) DIVORCE-ADULTERY-DEGREE OF PROOF. In an action for divorce for adultery, evidence held insufficient to sustain a decree for plaintiff, under the rule that a charge of adultery must be established by clear and convincing evidence. [Ed. Note. For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 411441.] Appeal from Special Term, Kings County. Action by Elizabeth L. Keville against Peter E. Keville for divorce. From an interlocutory judgment, and from a final judgment in favor of plaintiff, defendant appeals. Reversed on the law and the facts. Argued before HIRSCHBERG, P. J., and WOODWARD, GAYNOR, RICH, and MILLER, JJ. Thomas Kelby, for appellant. GAYNOR, J. The complaint alleges and the learned trial judge finds that the defendant committed adultery in his own house in August, 1904, and in April, 1905. The woman named was the servant of the household, which consisted of the plaintiff and the defendant and their two grown children, son and daughter. It is not permissible to make a finding of adultery on such evidence as this case presents. "Charges of this kind are only to be established by clear and convincing evidence; they are so serious in their character, and the results so grave, that a court should hesitate before making a finding of guilty except when thoroughly satisfied of the truth of the charge." Smith v. Smith, 89 Hun, 610, 35 N. Y. Supp. 556. The law and policy of this state is to preserve the stability of the marriage tie, and release from it only on safe and sound evidence. The plaintiff went away on summer vacation at the beginning of July, 1904. She took the son and daughter with her, and left the defendant at home alone with the accused servant girl. She remained away until the end of August. A woman who was living next door and taking care of the house (Mrs. Bauer's) for the summer was the witness called by the plaintiff to prove the alleged adultery in August. 106 N.Y.S.-63 and 140 New York State Reporter Her story is as follows: She says she heard noises in the defendant's house through the brick party wall of the two houses, i. e., persons talking in the back parlor. There was an extension on the rear of each house. The tin roof of it was just under and up close to the rear parlor windows. This roof was continuous along the rear of both houses. She says she thought this noise was of burglars, and went along this roof to look in. She had often heard talking in the house before in July and August but never looked in before or afterwards, or told any one of her belief that it came from burglars. In fact she knew well that the house was not unoccupied, but was occupied by the defendant and the servant. She used to see him going and coming morning and evening often, and saw and talked with the girl. And yet she says that when people leave their houses unoccupied in the summer burglars come, as a token of the reality of her belief. She went along the extension roof from the window of the rear parlor she was in to the window of the defendant's rear parlor. It was between 6:30 and 6:45 p. m. The window was down, the shade inside nearly down and the outside blinds closed. She crouched down low and peeked through the slats of the blinds and under the inside shade. She is near sighted, and has to wear glasses to get along at all. "I heard them through the brick wall, so then I went out on the back piazza" (roof of the extension) "to see the robbers, and I say I looked in the parlor window," is her version in her own words. She says she saw the servant girl lying on her back on the floor in the middle of the rear parlor with her skirts pulled up about her. She saw that the girl had on a dark skirt and a white waist. The defendant was standing up with his trousers open. She continued to peek at them continuously five or ten minutes, and this is all she saw. They remained in the same position and condition all the while. Counsel for plaintiff, deeming the length of time she gave and adhered to as extravagant, tested her on it, watch in hand, telling her to begin at the drop of his finger and tell him when the time was up. At the end of a minute and a half the trial judge interrupted the monotony of her silence by asking her if the time she was looking through the window had expired, and she said "Yes." Her cross-examination was interrupted by adjournment to the next day. On its continuance then she said she was not in the rear parlor of the Bauer house when she heard the talk in the rear parlor of the defendant's house, but out on the extension roof washing the windows, and went along the roof and peeked. On the first day she said that she knew the plaintiff, that she had seen her going in and out of her house. The next day she said she knew the plaintiff lived there, but did not know her and had never seen her. On the first day she said she came to live in the said house next door about July 1st; on the next she changed it to May 1st. She said she once saw the defendant kiss the servant in the back parlor; afterwards she said she never saw him kiss her, but heard it through the party wall between her room and the said servant's room, the two rear hall bed rooms on the top floor. She says repeatedly that it was in August that she peeked and saw. She does not waver in this, and she says it was about the middle of August, as near as she can fix it. The date she cannot give. She says that after this |