oil and its value, he gave judgment in favor of the plaintiff. The judgment having been affirmed at the general term, the defendant has brought this appeal.

J. R. Jewell, for appellant. Loveridge & Leggett, for respondent.

EARL, J., (after stating the facts.) It appeared upon the trial that the Stephans put down the oil-well from which the oil in question was obtained. Hughes claimed that the well was upon his land, and notified the Stephans of his claim, and also gave notice to the United Pipe Lines, with which the Stephans had stored the oil, of his claim, and that it should not deliver the oil to them. This claim of Hughes, and notice to the pipe lines, embarrassed the Stephans, and, as they claimed, did them great damage, and they therefore brought an action against him, alleging that the well, and the oil therefrom, belonged to them; and they prayed for relief, that it be adjudged that the oil did belong absolutely to them, and that Hughes be required to pay to them such damages as they might sustain by reason of his unlawful assertion and acts of ownership of and to the well, and oil produced therefrom, and that they have such other and further relief as to the court should seem just and equitable. In that action Hughes put in issue the ownership of the well, and oil produced therefrom, and prayed, among other things, for judgment that the oilwell, and the oil produced therefrom, were his property. The action was referred, and the referee gave judgment dismissing the complaint, on the ground that the well, and the oil produced therefrom, belonged to Hughes; and judgment was entered in accordance with his report.

The very matter in issue in that action was the title to the well, and the oil produced therefrom. To maintain their action the plaintiffs were bound to establish that the well and oil belonged to them, and the defendant in that action could defeat the same by showing that the well and oil belonged to him, and he prevailed upon that issue; and thus there was an adjudication, binding upon the plaintiffs therein, that they had no title to the well, or the oil produced therefrom, and that the same belonged to Hughes. The fact thus established could not again be brought in dispute between the same parties or their privies; and the judgment in that action conclusively established against the plaintiffs therein the right and title of Hughes to the well, and the oil produced therefrom. This defendant stands in the place of Stephans and wife. It does not hold or claim the oil in its own right, but claims solely to hold it for Stephans and wife, by whom it has been indemnified against the claim of this plaintiff. The adjudication, therefore, which binds them, binds it; and this conclusion rests upon law so elementary that no citation of authorities to sustain it is needed. It is clear, therefore, that the plaintiff is entitled to recover the value of this oil from the defendant. He early gave it notice of his claim. He demanded the oil of it, and it refused to recognize his right. The oil in the earth belonged to him, and when taken therefrom by a

DORCHESTER V. DORCHESTER et al.1 (Court of Appeals of New York. April 15, 1890.) APPEAL-FROM INTERLOCUTORY JUDGMENT ON RE PORT OF REFEREE.

1. Code Civil Proc. N. Y. § 1001, providing that where the report, rendered on the trial of an issue of fact by a referee, directs an interlocutory judg ment to be entered, and further proceedings must be taken before a final judgment can be entered, a motion for a new trial, upon one or more exceptions, may be made at the general term, after the entry of the interlocutory judgment, and before the hearing directed therein, gives the general term power to review an interlocutory judgment on the report of a referee, on questions of law presented by the exceptions, but not on questions of fact.

2. Code Civil Proc. N. Y. § 1349, providing that an appeal may be taken to the general term of the supreme court, or a superior city court, "from an interlocutory judgment rendered at a special term or trial term of the same court, or, in the supreme court, at a term of the circuit court," does not authorize the general term to review an interlocutory judgment on the report of a referee.

3. Where, on appeal from an interlocutory judg ment on report of a referee, under Code Civil Proc. N. Y. § 1001, giving authority to review such a judgment only on questions of law, the general term fails to consider the questions of law, and reverses the judgment on the facts, the court of ap. peals, since under Code Civil Proc. N. Y. § 190, it has jurisdiction to review every "actual determi ination" of the general term, cannot therefore dismiss the appeal, but will reverse the judgment, and send the case back for a hearing on the questions of law.

Appeal from supreme court, general term, fifth department.

Action by Preston J. Dorchester against Edward C. Dorchester and Oswald J C. Rose, to set aside a bill of sale or assignment to defendant Dorchester from plaintiff. From an order of the general term reversing an interlocutory judgment entered on the report of a referee plaintiff appeals. Code Civil Proc. N. Y. § 1001, provides: "Where the decision or report, rendered upon the trial of an issue of fact by the court without a jury, or by a referee, directs an interlocutory judgment to be entered, and further proceedings must be taken before the court, or a judge thereof, or a referee, before a final judgment can be entered, a motion for a new trial, upon one or more exceptions, may be made at the general term, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein." Section 1349 provides that" an appeal may also be taken to the general term of either of these courts"-the supreme court or a superior city court-“from an interlocutory judgment rendered at a special term or trial term of the same court, or, in the supreme court, at a term of the circuit court."

D. B. Backenstose, for appellant. W'm. F. Cogswell and A. P. Rose, for respondents.

'Reversing 3 N. Y. Supp. 238.

O'BRIEN, J. The plaintiff, by a written | instrument bearing date July 1, 1884, expressed to be in consideration of love and affection, transferred to his son and only child, the defendant, his interest in a store, and afterwards assigned to him a policy of insurance on his life. At the time of the transfer the plaintiff was an equal partner with another person in the store, and it does not appear what the value of the interest transferred to the defendant' was or would be upon an accounting and adjustment of the partnership affairs, nor does it appear what was the value of the policy of insurance. The defendant, upon the delivery of the transfer to him, took possession of his father's interest in the store, and carried on the business in connection with the other partner, who recognized and treated him as a partner succeeding to his father's rights and interests. The plaintiff drew money from the store, with the defendant's consent, in such sums as he needed for his personal wants, the same as before the transfer. He was, at the time he made the transfer to the defendant, about 67 years old, and a widower. In April, 1887, he brought this action to set aside the assignment of the interest in the store and of the policy of insurance to his son, the defendant, on the ground that he was at the time incompetent to make the transfer in consequence of feebleness of mind, induced by ill health and the excessive use of intoxicating drink. There was no question as to the rights of creditors. The only question involved was the capacity of the plaintiff to make the contract, and, consequently, the validity of the instrument between the parties. The cause was tried before a referee, who directed the entry of an interlocutory judgment, setting aside the transfer by plaintiff to defendant, and providing for an accounting by the defendant of the proceeds of the business and property so transferred. Without completing the case, the defendant appealed from the interlocutory judgment to the general term, where it was reversed, as the order states, upon the facts, and a new trial granted.

We would have no difficulty in agreeing to the conclusion at which the general term has arrived in regard to the merits of the case, but we have no power to examine the facts, for the reason that they were not, as we think, properly before the general terin. The Code of Civil Procedure (section 1338) requires this court to review the determination of the court below, upon the facts, when it appears from the order that the reversal was upon questions of fact, and that does appear by the order in this case. But it is quite obvious that this section refers to a final judgment. The power of the general term to review a final judgment upon the report of a referee, upon either the facts or the law, or both, is ample. Code, § 1346. There are two sections of the Code that confer power upon the general term to review an interlocutory judgment. After its entry the party aggrieved may make a motion at the general term under section 1001, for a new trial, upon one or more exceptions, contained in a case to be settled as provided in section 997, and after the decision of

this motion an appeal may be taken by the unsuccessful party to this court; but upon this motion, at the general term, or the appeal to this court irom the order made thereon, only questions of law, arising upon exceptions, can be reviewed. Raynor v. Raynor, 94 N. Y. 248. Certain interlocutory judgments may also be reviewed by the general term on appeal, taken in pursuance of the provisions of section 1349, but this section does not authorize the general term to review an interlocutory judgment entered upon the report of a referee. There seems to be no reason why such a judgment, when entered upon the direction of a referee, should not be reviewed at the general term in the same way as the other judgments mentioned in this section. The legislature, for some reason, omitted to confer power on the general term, either by this section or any other of the Code, that has come to our attention to review an interlocutory judgment directed by a referee upon the facts.

In this case the defendant has attempted to bring the case before the general term by two distinct proceedings. He has appealed under section 1349, and moved for a new trial upon a case and exceptions under section 1001. We have seen that the appeal is unauthorized, and that the motion for a new trial presented only questions of law. The order granting a new trial, which we are asked to review, was made upon the facts which were not before the court below for examination. The proper disposition to make of the case, under these circumstances, is not altogether clear.

Though the general term, as we think, was without power to review the facts, we cannot, for that reason, dismiss the appeal, as section 190 confers jurisdiction upon this court to review an1 "actual determination" of the general term, and this is such a determination, although made without power. The general term was authorized to review the exceptions, upon the motion for a new trial, and to reverse the interlocutory judgment for any error of law appearing in the case; but it did not, in fact, as appears from its order, exercise that power. It is probably true that this court has the power to review these exceptions, and to affirm the order of the general term, should it appear that the case presents any question of law upon which the general term could have properly based its order of reversal, though the decision proceeded upon an entirely different ground. Ward v. Craig, 87 N. Y. 550; Marvin v. Insurance Co., 85 N. Y. 278. as the general term has not yet exercised the power conferred upon it by section 1001 to review these exceptions, and to reverse or affirm on the questions of law, we think the case should go back to that court for further hearing. If the exceptions are sustained, a new trial to the defendant must follow, and if they are reversed an appeal can be taken to this court. Before the case can be reviewed on the facts, the parties must go back before the referee, and finish the case, and enter

1"Every actual determination."

But

final judgment. Then the law and the facts | can be reviewed under the provisions of sections 1301, 1316, 1317, 1336, 1350, and other provisions of the Code. The order appealed from should be reversed, and the case remanded to the general term for a hearing upon the questions of law, costs to abide event. All concur.

(119 N. Y. 434)

MAYER V. MCCREERY.1

(Court of Appeals of New York. Feb. 25, 1890.)

CONTRACT-SPECIFIC PERFORMANCE.

1. A letter to the owner of a building proposing to accept a lease of it, specifying the term and rental, upon condition of alterations in accordance with "plans to be mutually agreed upon," and a letter from the owner accepting the offer, do not, in the absence of any agreement on the plans for alterations, constitute a contract for a lease, of which specific performance will be enforced.

2. Under such circumstances, the condition as to alterations was not waived by a subsequent letter from the owner refusing to lease the premises, nor by a tender of the rent at the time for the beginning of the term.

Appeal from general term, supreme court, first department.

Action by Max Mayer against James McCreery for specific performance of agreement to give a lease. The court, at special term, gave judgment for the plaintiff, and defendant appealed to the general term, which reversed the judgment and granted a new trial, from which decision the plaintiff now brings this appeal.

Fredk. R. Coudert, for appellant. W. F. Dunning, for respondent.

PECKHAM, J. This is an appeal from an order of the general term of the supreme court reversing a judgment for the plaintiff, and granting a new trial. The action was brought by the plaintiff for the purpose of procuring specific performance of an alleged agreement for the leasing of certain premises in the city of New York owned by the defendant, which, as was alleged, he agreed to lease to the plaintiff upon certain terms mentioned in the alleged agreement. The defendant denied the making of any such agreement; and, upon trial before a single judge, it was found that the agreement as alleged by the plaintiff had been made; and as the defendant had failed to execute the lease, and had in the mean time sold the premises, the court found that the plaintiff was entitled to recover of the defendant the damages sustained by him by reason of defendant's neglect and refusal to carry out the agreement already referred to. The court or dered a reference to ascertain and assess the damages, and to report to the court. Upon the trial the plaintiff, for the pur. pose of proving the agreement set up in the complaint, offered in evidence, and the same was received, a certain letter, of which the following is a copy: "New York, January 29, 1885. Mr. James McCreery-Dear Sir: I will take your building, 483 Fifth avenue, on a twenty-one years' lease from May 1, 1885, to be altered by you similar to the one Hume & Co. is now altering, and floors, &c., arranged as 'Affirming 44 Hun, 628, mem.

spoken about, &c., at the yearly rent of $5,250 for each year of the term, net rent. No taxes, assessments, &c. Plans, &c., to be mutually agreed upon. Yours, very respectfully, MAX MAYER. Building must be ready on May 1, 1885. On the same 29th of January the defendant sent to plaintiff a written acceptance of his offer, of which the following is a copy: “New York, Jan'y 29, 1885. Mr. Max Mayer-Dear Sir: Yours of this date, making me an offer on building No. 483 Fifth avenue for a twenty-one years' lease, has been received. I hereby accept your offer. Very truly yours, JAMES MCCREERY." On the 2d day of February, 1885, the defendant wrote to the plaintiff a letter, of which the following is a copy: "New York, February 2, 1885. Max Mayer- Dear Sir: I have submitted the correspondence regarding a lease from me to you of premises No. 483 Fifth avenue to my counsel, and am advised that there are difficulties which will prevent the making of a lease as proposed. You will therefore understand that the proposed lease cannot and will not be made. Very truly yours, JAMES MCCREERY." The judge found that the above letters were the only memorandum in writing signed by the parties, or by either of them, in regard to the lease of the premises, and that they constitute the only agreement that was made in relation thereto. He also found that the plaintiff has at all times been, and still was, ready and willing on his part to comply in all respects with the provisions and requirements of the agreement, and to pay the stipulated rent for the premises.

The question is whether these letters constitute a completed agreement, forming in substance a lease of the premises referred to therein. We think they do not. The substance of the agreement is that the lease of the building is to be given by the defendant; but, before it is to be done, alterations of the building similar to the one Hume & Co. " are now altering" should be made, and that plans for such alteration should be thereafter mutually agreed upon. It is in substance an agreement that, if the parties shall thereafter agree upon plans for the alteration of the building, thereupon a lease of the building upon the terms specified in the letters will be given by the defendant to the plaintiff. The whole language is conditional, and that condition is a future agreement between the parties as to the plans and scope of the alterations which are to be thereafter made by the defendant. It is conceded that no such agreement was ever thereafter entered into. On the contrary, the defendant, by his letter of the 2d of February, absolutely declines to make the lease; and the parties do not, as matter of fact, mutually agree upon the alterations to be made. We think it was entirely immaterial what reason was given by the defendant, or what motive actuated him, in his refusal to make the lease. had agreed to make it only provided the parties thereafter agreed upon the plans and alterations to be made; and, if no such agreement were arrived at, there was, necessarily, no lease. The case is unlike that of a paper containing two agreements, one valid and the other pro

He

hibited, where each is a complete agreement in itself, and where the valid agreement may be enforced, and the other disregarded. In this case there is no valid agreement, excepting an agreement to give a lease provided the parties shall thereafter agree upon the plans for alterations thereafter to be made.

We do not think it is a case where the plaintiff might waive the condition for making the alterations, and demand a lease without such agreement having been arrived at. If they are separable contracts, and if the alterations to be made were to be agreed upon solely for the benefit of the plaintiff, the right to waive such alterations might possibly exist, and his claim to exact performance of the agreement for the lease might be a valid one. But we do not think such is the case. The defendant has agreed that he would give a lease provided he and the plaintiff should subsequently agree upon plans for alterations to be thereafter made. But he was under no obligation to agree upon such plans. On the contrary, he might arbitrarily refuse to agree upon them, and his refusal would be a sufficient answer to the demand for the execution of the lease. It would be no answer for the plaintiff to show that he had offered to agree on plans which were reasonable and proper, but that the defendant had without reason refused to agree upon them. The future agreement upon plans was not of such a nature that the plaintiff would have a right to ask that the defendant should specifically perform, upon proof that the plaintiff had offered plans which were reasonable in themselves, and which the defendant ought to have agreed upon. It did not belong to that class of agreements where one party agrees to do work to the satisfaction of another, and which the court holds the other should, as matter of law, be satisfied with, upon proof that it would be utterly unreasonable not to be so satisfied. Here the condition whether there was to be a lease executed depended wholly upon the fact of the agreement thereafter to be made between the parties as to plans for the alteration of the building. Before any negotiations were entered into, the owner of the property, of course, would have a right to insist upon such conditions as he chose; and whether they were reasonable or unreasonable would not be a matter of the slightest consequence. His decision would stand as reason enough. Having that right, he could agree to give a lease upon such terms as the parties might thereafter mutually agree upon; and his refusal to thereafter agree upon any terms would still be a sufficient answer to any demand of the plaintiff, whether such reasons were good or bad. In this instance the parties did agree, the one to lease, and the other to receive the lease, upon certain conditions to be thereafter mutually agreed upon. Those conditions never were thereafter agreed upon, and hence no right to claim the lease ever existed. The motives of the defendant for his refusal are wholly immaterial. Whether they were because he thought he could make a more favorable agreement with some other person, or be

cause he thought there was some difficulty in the deeds upon which he held title which prevented him from leasing the premises for the purposes intended, is a matter of no importance. The sole condition upon which the lease was to be executed never existed, and hence no right to claim the lease ever arose upon the part of the plaintiff.

But we think that, so far as the evidence shows, there was never any waiver of the plaintiff's right to claim the alterations spoken of in his letter to the defendant. The mere fact that, at what he claimed to be the commencement of the lease, he offered in advance a month's rent in full, was not a waiver of his right to demand the alterations spoken of in his letter. It was simply a tender of rent on his part, which, we think, did not conclusively waive a right, if it had existed, to claim the alterations as if they had been mutually agreed upon. Nor did the defendant waive his right to have the alterations mutually agreed upon before the execution of the lease by his letter of the 2d of Febru. ary, in which he stated that he was advised that there were difficulties which would prevent the making of the lease as proposed. If we are right as to the fact that the motives of the defendant in refusing to make the lease are wholly immaterial, it follows that any statement of such motives, or any statement of the reasons which guided him, would be also immaterial. The material part was his failure to agree upon the plans of the alterations. Whether that failure was based upon the advice of his counsel as to legal difficulties in making a lease, or upon any other reason, would constitute no waiver of his right to insist upon such an agree ment before the plaintiff's right to demand a lease would arise. We think the general term was right in reversing the judgment of the special term, and granting a new trial; and its order to that effect should be affirmed, and judgment absolute given against the plaintiff upon his stipulation, with costs. All concur.

(119 N. Y. 441)

AKIN V. KELLOGG et al.1 (Court of Appeals of New York. Feb. 25, 1890.) WILL-WIDOW'S ELECTION-LIMITATIONS.

1. Where a widow, for more than one year after her husband's death, fails to make her election between a testamentary provision and dower, equity cannot relieve her from the statutory presumption that she has elected to take under the will, (Rev. St. N. Y., 7th Ed., p. 2198, § 14,) because she acted in ignorance of the nature and extent of the estate, and relied on the representations of testator's confidential agent and adviser, who was familiar with the estate, but who was also the husband and agent of testator's daughter, out of whose lands plaintiff would be dowable. The act is a statute of limitations, and the policy of the law forbids the granting of relief against its provisions.

2. Under such circumstances, representations by testator's agent and adviser of matters of opinion, probability, possibility, or conjecture, even if made in the presence of his wife, cannot operate as an estoppel to prevent her from pleading the statutory presumption of election against plaintiff's claim.

'Affirming 1 N. Y. Supp. 846.

Appeal from supreme court, general term, third department.

Action by Alletta A. Akin against Sarah A. Kellogg and Asa B. Kellogg, asking equitable relief from the presumption of having elected to take under her husband's will in lieu of dower, arising by the provisions of the statute (Rev. St. N. Y., 7th Ed., p. 2198, § 14) from her failure to signify her election for more than one year after her husband's death. There was judgment for defendants, which was affirmed by the general term, and plaintiff again appeals.

Mathew Hale and Walter E. Ward, for appellant. L. Laflin Kellogg, for respond

ents.

GRAY, J. The complainant is the widow of Benjamin Akin, deceased, who in his will made certain provisions for her out of his estate, which were expressed to be in lieu of her dower right. They gave to her one-third of the personalty absolutely, and the net income of one-third of the real estate, which was vested in a trustee for that purpose during her life. She did not commence any proceedings or take any step towards a recovery or assignment of her dower in the real estate within the year succeeding the testator's death; and this action was commenced by her some three years afterwards. Through it, she seeks to obtain a decree relieving her "from the penalty imposed by statute for not having, within one year after the death of her husband, entered on the land to be assigned to her for her dower, or commenced proceedings for the recovery or assignment thereof," and permitting her to make her election, and to renounce the testamentary provision. The allegations in the complaint are that plaintiff was ignorant of the nature and extent of the estate of said Benjamin Akin at the time of his death, and for a long time thereafter, and until his executor filed his accounts, and asked for a final settlement; that Asa B. Kellogg, the husband of the defendant, Sarah A. Kellogg, had been for many years prior to the death of the said Benjamin Akin the agent and confidential adviser of said Benjamin Akin, and had transacted all his business for him, and had been familiar with the affairs and property of the said Benjamin Akin; that after the death of the said Benjamin Akin this plaintiff had great confidence in the said Asa B. Kellogg, and put entire faith in his representations; that the said Asa B. Kellogg was also the agent of his wife; that, shortly after the death of the said Benjamin Akin, he stated and represented to plaintiff that it would be more advantageous to her to accept the provisions of the will than to claim her dower in the real estate left by him. Such representations were made to plaintiff in the presence of his wife, acting as her agent, and for her benefit. avers that the statements were made for the benefit of Mrs. Kellogg, the owner of the lands out of which the dower is sought, and that by them she was induced to omit and neglect to take the steps towards a renunciation of the testamentary provisions, and towards securing her dower interest in the real estate, which

She

she would have taken had she not relied upon them, or had she been informed of the actual condition of the estate.

I think, even if we assume the truth of these charges of her complaint, that her right to relief in equity is most doubtful. She does not ask for relief against some positive act of her commission, procured by the fraud of another. She asks for it because, through reliance upon the statements of others, she remained inactive, and thus suffered the period of time to expire within which she should have been diligent to ascertain and to secure her rights. Now, equity does not interfere to grant relief when one has failed in diligence, or in the performance of an obvious and imperative duty imposed by law. It does not rise above the common law and the statute. Its office is not to relieve against a hardship, merely as such; nor should its interference be moved by mere opinion in the judge. I do not think the equitable powers of a court can be properly invoked to interfere with the established rules of law, though the same result may be often reached by an injured party in preventing another from benefiting by an act or contract procured by his artifice or deceit. The theory of estoppel might be available in some such case. Here the complainant was apprised by the will of an option offered to her with reference to her future property rights; and it became at once her legal duty to be diligent and careful in acting, if she proposed to take what the law assured to her in place of what the will gave. The Revised Statutes have but followed the common law in their provision for an election by the widow between a testamentary gift in lieu of dower and the dower right itself. But they have further provided that the widow shall be deemed to have elected her devise or pecuniary provision, unless, within one year after the death of her husband, she shall enter upon the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Where, then, a provision is by the express terms of the will made in lieu of dower, the widow is obliged to make an election whether to accept or to renounce it for what the law gives to her. She cannot have both, and she is at once chargeable with the duty of informing herself, so as to make her election. And, that she shall have a certain period of time for that purpose, the legislature has provided what was deemed a reasonable season of delay; and its enactment that the election must be made within one year has the same force as a statute of limitation upon the widow's rights. The object of the legislature was to compel the widow to make her election a reasonable time after the death of her busband. Hawley v. James, 5 Paige, 446. The right to dower out of the estate is a strict legal right, of which the widow cannot be deprived save by her own act in waiving it, or in accepting some other and inconsistent provision. Nor does the statute attempt to deprive her of it; but it provides that, where something else is given to her in lieu of it, if then she does not do some act evidencing a renunciation of the gift, in favor of what the law will