court in allowing such recovery. If the defendant was guilty of fraudulent practice upon the plaintiff, he could not maintain an action to recover the contract price for his services, or of the value of them; and when she paid him, in ignorance of his fraud, she could recover the sum paid, when she discovered the fraud. The defendant, in view of his fraudulent conduct, earned no compensation, and was not entitled to be paid; and no rule is better settled than that if money is paid under a mistake of the facts, or under fraudulent representations, it may be recovered, on discovery of the true state of facts. No error is discoverable in the record, affecting the case, and we do not think the judgment should be disturbed. The order must therefore be an affirmance of the judgment, with costs.

(4 Misc. Rep. 448.) WALSH v. WALSH.

(Superior Court of Buffalo, General Term. July 14, 1893.)

1. TEMPORARY ALIMONY-SUFFICIENCY OF EVIDENCE.

Where, on the hearing of a motion for alimony pending an action by the wife for a divorce, defendant denies the marital relation, and the evidence is such that if the question were submitted to a jury, and they should find the existence of such relation, the court would have no difficulty in sustaining the verdict, an order directing defendant to pay alimony will not be disturbed.

2. SAME-IMPROPER EVIDENCE.

Where, if so much of the evidence submitted in such case as is claimed to be inadmissible be eliminated, and what remains is sufficient to uphold the order for alimony, it will not be disturbed because such evidence was received.

Appeal from special term.

Action by Anna Walsh against Andrew J. Walsh for divorce. From an order directing defendant to pay alimony pending the action, he appeals. Affirmed.

Argued before TITUS, C. J., and HATCH, J.

Whitcher & Sawyer, for appellant.

J. W. Russell, for respondent.

HATCH, J. The complaint alleges that the parties were married at the city of Bradford, December 23, 1879, and continued thereafter to live together as husband and wife until December, 1890, when defendant, without cause, abandoned plaintiff, and has since refused to cohabit with or support her; demands judgment of separation and permanent support. The answer is a general denial of all the allegations of the complaint, excepting defendant's residence. The issue presented upon the motion, and argued upon this appeal, relates to the existence of the marital relation. No formal ceremony of marriage was performed, but it is claimed that the parties, by agreement, constituted the relation, and immediately followed it up by cohabitation, which continued for nearly 10 years, during which time the parties were generally known by their acquaintances and society as husband and wife. As to the actual

agreement of marriage, no proof appears in the record, except the allegation of the complaint, duly verified, accompanied by affidavits of plaintiff, in which the allegation is reiterated with detailed circumstances. The defendant, with equal stubbornness, denies the allegation of the complaint, and by affidavit, in detail, denies the marriage, and those portions of the affidavits of plaintiff and others, which accompany it, tending to establish that the parties were known or held out to be husband and wife. Upon this evidence the court was called on to consider and weigh how far the acts of the parties themselves, and the attitude they assumed towards society, justified the inference of the existence of the marital relation. The law of the case is quite well settled in this state, and the rule is the same in the state where it is alleged the marital tie was assumed. It is thus stated by Folger, J.:

"In an application for temporary alimony, *- * * although there may be in the answer a general denial of the existence at any time of the marital relation, the court has the power, from the affidavits and other papers presented to it, to pass upon the question for the purposes of the application, and it is not bound down to the allegation of the complaint and the denial of the answer, if other papers or proofs are submitted to it; and though the denial of the answer, if standing alone, would bring the case within the rule that, where no marital relation is admitted or proven, there is no right to alimony, yet if the matters contained in other papers, or shown by legitimate proofs, before the court, make out, in the judgment of the court, a fair presumption of a fact of marriage, it has the power to grant alimony pending the action. and expenses of the action." Brinkley v. Brinkley, 50 N. Y. 194.

This rule was again reiterated in Collins v. Collins, 71 N. Y. 273, 274, where it is again asserted "that it was not necessary that the marriage be established as conclusively as would be required for the ultimate purposes of the action."

There is little need of placing here the result of an analysis of the papers and affidavits submitted upon the motion. It is sufficient now to say that if the questions presented were submitted to a jury, and they should find the existence of the marital relation, the court would have no difficulty in supporting the verdict. This being the case, we can very well see that a case was presented for the court below to pass upon, and exercise its discretion in awarding or withholding alimony. The conclusion reached, we think, was justified by the papers submitted.

Objection is made that the photographic copies of the envelopes should not have been received. If this be so, it does not appear from the record that the court took any action thereon. If it did,

no exception was taken to the ruling, nor does it appear that the court made any ruling thereon; and we are now unable to say whether the court below considered them, or not, from anything appearing in the record. If they be entirely eliminated, there still remains evidence sufficient to uphold the order made. The order appealed from is affirmed, with $10 costs and disbursements.

(70 Hun, 428.)

SNYDER v. CHURCH et al.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. CHAMPERTOUS DEED-ADVERSE POSSESSION OF LAND.

A deed given by a person out of possession is void for champerty against one who for eight years prior to its execution had been in possession adverse to the grantor.

2. DEED-CONSTRUCTION-FRAUD.

One C., having the legal title to land, gave for a valuable consideration a deed to the same, purporting to be executed by his grantors, but which was in fact signed by third persons. Held, that the grantee acquired no legal title.

Appeal from circuit court, Albany county.

Ejectment by Jacob M. Snyder against Henrietta Church and P. Bartholomew. From a judgment dismissing plaintiff's complaint, he appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM, J.

W. & G. W. Youmans, (W. Youmans, of counsel,) for appellant. Marcus T. Hun, for respondents.

MAYHAM, P. J. The complaint is in the usual form in an action in ejectment, alleging that the plaintiff is the owner in fee of a farm of about 130 acres of land, and alleges that Walter S. Church, for about eight years before the commencement of the action, had been in the wrongful possession, and was wrongfully withholding the possession, and that the annual value of the use of the premises was about $200. The complaint demanded judg ment for the possession of the farm, and damages for the use of the same. The answer was a general denial. On the trial the plaintiff put in evidence a lease dated May 9, 1797, executed by Stephen Van Renselaer to John Jose Shafer. The lease granted, sold, remised, released, and confirmed the demised premises to the lessee upon conditions of payment by him or his assigns of an annual rent and the performance of the annual service therein specified, and was in the usual form of the Van Renselaer manorial leases, and purported to convey 253 acres of land. The plaintiff also put in evidence a warranty deed from John Jose Shafer to John J. Dietz, dated the 14th day of October, 1831, purporting to convey 126 acres of land, being the north half of the land originally leased by Stephen Van Renselaer to John Jose Shafer, father of the grantor in said deed. This deed was subject to the rents and reservations contained in the criginal lease. The plaintiff also put in evidence the last will of Stephen Van Renselaer, devising all his interest in his lands and rents reserved to his son Stephen Van Renselaer, which will was admitted to probate April 30, 1835, also deed from Stephen Van Renselaer to James Kidd and Peter Cagger, dated May 2, 1864, conveying the landlord's interest in the premises in question. The plaintiff's counsel also put in evidence a deed from James Kidd and Peter Cagger to Walter C. Church, dated July 8, 1878, conveying the landlord's interest in v.24N.Y.s.no.4-22

the premises in question. The plaintiff gave evidence tending to prove that Walter S. Church acted as the agent of Kidd and Cagger previous to the time of their deeding to him their interest in this land, with others. That Church had an office, and did the business, except in suits, and Cagger was the attorney. Plaintiff also gave evidence by several witnesses tending to prove that an instrument purporting on its face to be a deed from Kidd and Cagger to Jacob Dietz, dated 17th of May, 1867, and to convey the premises in question, was made out in the handwriting of Walter S. Church, but which purported to have been signed by Paul Coggervill and J. Koons. This deed was offered and received in evidence, with its indorsements, and is as follows:

"This indenture, made the seventeenth day of May, in the year of our Lord one thousand eight hundred and sixty-seven, between James Kidd and Jane Maria, his wife, and Peter Cagger and Elizabeth F., his wife, of the city of Albany, and Jacob I. Dietz, of the town of Berne, in the county of Albany, of the second part, witnesseth, that whereas, Stephen Van Renselaer, now deceased, by an indenture dated on the 21st day of Jan., in the year eighteen hundred and one, granted and conveyed to Jacobus Dietz certain lands embracing the lands which are hereinafter more particularly described, subject to a certain perpetual rent, and to certain reservations and conditions in and by said indenture of lease provided for; and whereas, by various grants, assignments, and conveyances the title to said reserved rent, and to all the estate and interest of said Stephen Van Renselaer in the premises so leased in fee, and particularly hereinafter described and granted, has become and is vested in the parties of the first part hereto: Now, therefore, the said parties of the first part, for and in consideration of the sum of two thousand dollars, lawful money of the United States of America, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, aliened, remised, released, enfeoffed, and confirmed, and by these presents do grant, alien, remise, release, enfeoffe, and confirm unto the said party of the second part, and to his heirs and assigns, forever, all the said rent so reserved out of and chargeable upon, and all his estate and interest in, certain lot, piece, or parcel of land, situated now in the town of Berne, in the state of New York, county of Albany, and manor of Rensselaerwyck, and hereinafter more particularly described; together with all and singular the rents, hereditaments, and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, or issuing or reserved therefrom, and all the estate, right, title, interests, claims, and demands whatsoever of the said parties of the first part either in law or equity, of, in, and to the above-granted premises, with the said hereditaments and appurtenances; to have and to hold the above-mentioned rents and hereinafter described premises, with the appurtenances, and every part and parcel thereof, to the said party of the second part, his heirs and assigns, forever. And the said James Kidd and Peter Cagger, for themselves, their heirs, executors, and administrators, do coverant, grant, bargain, promise, and agree, to and with the said party of the second part, his heirs and assigns, to warrant and forever to defend to the said party of the second part, his heirs and assigns, against the said parties of the first part, their heirs, executors, administrators, and assigns, and against all and every other person or persons claiming or to claim by, under, or through them, the said parties of the first part, or their or any of their acts or deeds, the said above-mentioned and hereby granted rents and premises, which are more particularly described as follows, viz.: All that certain piece or parcel of land situate, lying, and being in the town of Berne, and being the same lands which the sheriff of Albany county conveyed to John B. Dietz, and the same as were formerly owned by Jacob I. Dietz.

"In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written.

"Paul Coggervill. [L. S.] "J. Koons. [L. S.]

"Sealed and delivered in the presence of E. Williams. "Indorsed: Warranty Deed. James Kidd and Jane Maria, his wife, and Peter Cagger and Elizabeth F., his wife, to Jacob I. Dietz. Dated the 17th day of May, 1867."

There was evidence tending to show that Church delivered this instrument to Jacob I. Dietz, the grantee therein named, at the time it bears date, and the plaintiff urges that it appears from the deed itself that Dietz paid the consideration therein expressed of $2,000. The plaintiff also put in evidence a deed from Jacob I. Dietz to Jacob M. Snyder, purporting to convey the premises in question, dated July 3, 1890. The plaintiff also proved the death of Walter S. Church after the commencement of this action, the probate of his will, and the substitution of Henrietta Church, his executrix, and devisee of his lands, as defendant in this action. Upon these facts the defendants at the close of the plaintiff's evidence asked the court to nonsuit the plaintiff. The plaintiff insisted in submitting the case to the jury. The court declined to submit the case to the jury, and nonsuited the plaintiff.

If this action had been to reform a deed for mistake or fraud, I should be strongly inclined to grant relief; but as the case stands I see no ground for granting a new trial. Clearly the plaintiff has failed to show any legal title in himself, as the grantors to Dietz do not appear to have had any title to these lands, either legal or equitable. Dietz therefore acquired no title which he could convey to Snyder. This being so, it is unnecessary to examine the alleged defect in the defendants' title to these premises, as the rule is well settled that in actions of ejectment the plaintiff must recover upon the strength of his own title, and not upon the weakness of the title of his adversary.

There seems to be another objection to the recovery of the plaintiff in this action upon the fact of the complaint and proof. The complaint shows that the defendants were at the time of the commencement of the action, and for eight years prior thereto had been, in possession, holding adversely to the plaintiff's grantor. The plaintiff's deeds bear date in 1890, and while the defendants were in possession. As matter of law, as against the defendants, the plaintiff's deed was void for champerty. We think the learned judge was right in nonsuiting the plaintiff. Judgment affirmed, with costs.

(70 Hun, 547.)

GARDNER v. CHRISTIAN et al.

(Supreme Court, General Term, Third Department. July 8, 1893.) INCORPORATION OF VILLAGE-IRREGULARITY OF ELECTION-REMEDY.

Laws 1870, tit. 1, c. 291, § 11, as amended by Laws 1878, c. 59, § 2, relating to the incorporation of villages, provides that, within 10 days after filing the certificate of election in the county clerk's office, any qualified