Barnum v. Board of Supervisors of Sullivan County. by chapter 907 of the Laws of 1869, as *Lewis E. Carr, for appellant: The The town of Thompson issued its bonds in aid of the Monticello & Port Jervis Railroad Company, under the act of 1868 (chap. 553), as amended by the act of 1869 (chap. 96). The bonds were delivered to the railroad company in exchange for its stock, and passed by sale into the general market. The plaintiff's remedy, assuming there was town undertook to resist its liability on the one, was not by an action against the board of bonds, and in Horton v. Town of Thompson, supervisors but by mandamus or certiorari. The decision of that body on the plaintiff's claim 71 N. Y. 513, the whole issue was declared was final until reviewed and reversed in the void by this court; but actions were afterproper way and by the proper method of proced-wards brought in the Federal court upon the ure. That method was not by an action at law to recover the moneys claimed. Strough v. Bd. Suprs., 119 N. Y. 212, 219, 220; Bridges v. Suprs., 92 id. 570, 581; Newman v. Suprs., 45 id. 676; Dewey v. Suprs., 62 id. 294; People v. Suprs., 67 id. 109, 114; Osterhout v. Rigney, 98 id. 222, 232, 233; People ex rel. v. Barnes, 114 id. 317; People ex rel. v. Suprs., 51 id. 401 People ex rel. v. Suprs., 70 1d. 228, 233; People ex rel. v. Suprs., 56 Hun, 459; People ex rel. v. Suprs., 25 id. 131; Spaulding v. Arnold, 125 N. The judgment appealed from was based on error because at the time this claim was made and this action was brought no bonds of the town of Thompson were outstanding to which the statutes of 1869 and 1871 apply. If the town ever incurred any obligation in aid of this railroad, it had been theretofore extinguished. Horton v. Town of Thompson, 71 N. Y. 513; Thompson v. Perrine, 103 U. S. 806; Orleans v. Platt, 99 d. 676; Clark v. Sheldon, 106 N. Y 104 Hawks v. Weaver, 46 Barb. 164; Miller v. Scherder, 2 N. Y. 262; Suydam v. Smith, 7 Hill, 182; Van Tassel v. Derembacker, 56 Hun, Y. 194. 477. The recovery, if well founded, was far too much. The amount of the tax for school purposes should have been deducted. 2 R. S. (8th ed.) 1301, 1302; Laws of 1887, chap. 638. The recovery was, in any event, too much, because it included more years than fell within the rule of limitation adopted by the_court. Green v. Roworth. 113 N. Y. 462, 467; T. Nat. Bank v. Parker, 130 id. 415, 417; Kelly v. Leggett, 122 id. 633; Code Civ. Pro. § 1207. matured coupons, and the bonds held to be valid and binding obligations of the town. Thompson v. Perrine, 103 U. S. 806, 26 L. ed. 612, 106 U. S. 589, 27 L. ed. 298. Judgments followed as of course, and the town found itself liable upon its bonds, notwithstanding the favorable decision in this court. Our view of the law did not help or mitigate the actual condition, and the town was compelled to take steps to provide for the payment of the debt which a competent court had adjudged to exist. The original bonds *drew 7 per cent interest. In 1883 [*182 an act was passed (chap 226) which authorized the town to issue bonds at a lower rate of interest to refund its original debt. With that new issue the judgments for interest and retired, so that the new issue is alone were discharged, and the old bonds paid off outstanding. It is now claimed that the act of 1869 (chap. 307), as amended in 1871 (chap. 283), under which this action is brought, does not cover the new issue of bonds, but spent its entire force upon those originally executed. That is a distinction which we cannot approve. A doctrine of similar character was rejected by us in City of Poughkeepsie v. Quintard, 136 N. Y. 275. We there maintained the substantial identity of the one existing debt, although, in the process of refunding, the old bonds had been paid off. We regarded it as the renewal or extension of an old debt, instead of the creation of a new one. reasons are quite as clear in the present case. The new bonds stand in the place and stead of the old securities; they represent in all respects the same debt and the same liability; they are practically and substantially bonds issued in aid of the railroad company, notwithstanding their new form and later issue; for they represent and secure that identical debt, and were created to fund and pay it. There is not a single reason which justifies the application of the act of 1869 to the old bonds which does not equally apply to the new. The theory of the act was that Finch, J. All the questions in this case, the town had borne the burden of creating except one, are covered by the opinion in Kil- a new taxable property within its limits, and bourne v. Supervisors of Sullivan Co.,† and should have the benefit of the taxes resultneed not be further discussed. The questioning, until its burden was lifted. Refunding peculiar to this case grows out of the refunding of the bonds of the town under the act of 1883. The facts are briefly these: T. F. Bush, for respondent: It is contended by the defendant that the original bonds, having been adjudged void by the Court of Appeals, were put out of existence by that decision, and the town, therefore, 181] had no bonds to which these taxes could be applied. This is untenable. Strough v. Bd. Suprs., 50 Hun, 54, 119 N. Y. 212. In This statute like all others must be interpreted and enforced in accord with its spirit and in view of the purpose to be accomplished. re Breslin, 45 Hun, 210, 214; Smith v. People, 47 N. Y. 330; People v. Davenport, 91 id. 574; Bell v. Mayor, 105 id. 139, 144; Delafield v. Brady, 108 id. 529; People v. La Combe, 99 id. 49 Weiler v. Newbach, 47 Hun, 168; Van Tassell v. Derrembacker, 56 id. 477. The act providing for issuing new bonds for the purpose of paying and taking up the old ones is consistent with the act of 1869, and both may stand together. Ackerson v. Suprs., 45 N. Y. S. R. 173; People ex rel. v. Suprs.. id. 89; Crowninshield v. Bd. Suprs., 124 N. Y. 583. Ante, page 310. The has only reduced the annual interest pres sure, but has not removed the burden; and to say that the technical payment of the old bonds, as a necessary step in the process of renewal, has at all satisfied the purposes and objects of the act of 1869, is to put form in Barnum v. Board of Supervisors of Sullivan County-Richards v. Day. the place of substance, and make the mere security for the debt the object of protection, instead of the debt itself. Such a construction would destroy and render ineffectual the obvious purpose of the law in every case where the saving of interest by a permitted refunding can only be accomplished by retiring and paying off the old bonds with the proceeds of the new. 183] *The question of costs included in the judgments will not arise until they are solely represented by outstanding bonds. The judgment should be affirmed, with costs. All concur. Judgment affirmed. and for money paid for the defendant's testatrix, Elizabeth Davis. The defendant put in issue the al- [*184 legations of the complaint, and set up as a counterclaim that the plaintiff and his wife executed to Mrs. Davis their joint and several bond in the penal sum of $3,500, conditioned to pay her the sum of $210 on the 6th day of April, 1881, and $175 "each year thereafter during the natural life of Elizabeth Davis," but no part of the principal to be paid; and that the interest falling due on April 6th in each of the years 1885, 1887, 1888, and 1889, had not been paid; and he demanded judgment against the plaintiff for these sums, with interest. The plaintiff replied to the counterclaim, and among other defenses de Laws 1869, chap. 007, was repealed by thenied "that he sealed, executed, and delivered General Municipal Law. Bonds issued to refund, not new debt. due on the bond, and that motion was denied. the bond as set forth in the counterclaim." Mrs. Davis died April 10, 1889, and plaintiff's wife died before the commencement of N. Y. Laws 1869, chap. 907, § 4, as amended this. action. At the close of the evidence the by N. Y. Laws 1871, chap. 283, providing that all railroad taxes shall constitute a sinking defendant's counsel asked the court to difund to be applied to the redemption of rail-rect a verdict in his favor for the amount road-aid bonds issued by the town, includes bonds issued in renewal of the original bonds. Plaintiff's counsel then asked the court to Van Tassell v. Derrenbacher, 56 Hun, 477. Refunding bonds issued under authority of direct a nonsuit in reference to the counteran.act of the legislature for the purpose of tak claim, and that was granted. Thereafter ing up a valid and enforceable indebtedness of a county are not invalid because they may ex- judgment was entered dismissing the plainceed a constitutional limitation of 5 per cent tiff's complaint and dismissing the counteron the taxable valuation of property. Etna claim. From so much of the judgment as disL. Ins. Co. v. Lyon County, 44 Fed. Rep. 329. Bonds issued by a county to refund outstand- missed his counterclaim the defendant aping bonds, warrants, and orders are not the pealed to the General Term, and there that creation of an indebtedness or liability, within Mont. Const. art. 13, § 5, prohibiting counties portion of the judgment was reversed, and a from incurring indebtedness or liabilities in ex-new trial as to the counterclaim was granted. cess of $10,000 without a vote of the electors. Hotchkiss v. Marion, 12 Mont. 218. The issuance of a funding bond in exchange for valid warrants does not create a debt, withIn the Colorado Constitution limiting the amount of an indebtedness. Lake County Comrs. v. Standley, 24 Colo. 1. The issuance, by a city whose indebtedness exceeds the constitutional limit, of bonds in exchange for old bonds and outstanding warrants against the city, does not create a debt within the constitutional prohibition. Heins v. Lincoln, 102 Iowa, 69. RICHARDS v. DAY. (Rev'g 45 N. Y. S. R. 722, 18 N. Y. Supp. 733.) Bond-executed in blank-parol evidence. The signer of a blank bond which is filled up thereafter with terms different from those authorized by him is not bound thereby, unless he has become estopped as to the holder of the bond to deny that he authorized it to be filled up in that form. Parol evidence that a bond sued on was executed in blank, and was filled up contrary to direction, may be given under a simple denial of execution and delivery. APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made March 29, 1892, which reversed so much of a judgment, entered upon a decision of the court on trial at Circuit, as dismissed defendant's counterclaim and directed judgment thereon in favor of plaintiff, and granted a new trial. Action to recover for services rendered Further facts are stated in the opinion. The evidence introduced to show that the alleged bond did not contain what it was agreed that it should contain was competent. Chauncy v. Arnold, 24 N. Y. 330; D. & H. R. R. Co. v. Mabbitt, 58 id. 397. The motion for the direction of a verdict in favor of the defendant, and for a nonsuit in favor of the plaintiff, leaves it to the court to determine the facts. Dillon v. Cockcroft, 90 N. Y. 649; N. C. Bank v. Westcott, 118 id. 468; Sutter v. Vanderveer, 122 id. 652. The admission of the deceased may be proved against her executor. Van Sachs v. Kertz, 72 N. Y. 555; Brown v. Miller, 12 id. 118. *Cassius C. Davy, for respondent; [*185 Plaintiff became liable upon the bond by his signature to it, although his name does not appear in the body of it. Ex parte Fulton, 7 Cow. 484; Perkins v. Goodman, 21 Barb. 218; Decker v. Judson, 16 N. Y. 439; 1 Wait's Act. & Def. 676; Smith v. Crooker, 5 Mass. 538; Fournier v. Cyr, 64 Me. 35; Blakely v. Blakely, 2 Dana, 463; Martin v. Dortch, 1 Stew. (Ala.) 479; Field v. VanCott, 15 Abb. Pr. (N. S.) 349 Code Civ. Pro. § 454; Carman v. Plass, 23 Justice Willard to fill in the blanks in the printed form after it had been signed and sealed. Mechem on Agency, 70: Knapp v. Maltby, 13 Wend. 587: Drury v. Foster. 2 Wall. 24; C. Bank v. Kortright, 22 Wend. 348; Woolley v. Constant, 4 Johns. 54: Ex parte Decker, 6 Cow. 60 Ex parte Kerwin, 8 id. 118. Parol authority was sufficient to authorize No equitable relief is asked for by the pleadings, nor has any fraud or mistake been alleged; and in the absence of such allegations Richards v. Day. no equitable relief can be granted. Gould v. C. Parol evidence was not admissible to contradict the bond. Marsh v. McNair, 99 N. Y. 178; Southwick v. F. N. Bank, 84 id. 424. N. Y. 340. Hatfield, 46 id. 533. tiff, if the bond was not filled up as [*187 agreed, was to have it reformed so as to make it conform to the agreement; and the General Term upheld this claim, holding that under the issue formed by the reply the parol evidence was inadmissible to contradict or vary the bond, and that if it did not express the true agreement between the parties the plantiff should have interposed a reply asking for its reformation. We think the learned General Term fell into error. If this had been a complete bond when the plaintiff signed it, although by misThe specific grounds upon which plaintiff take or fraud it did not express the true moved for a nonsuit with reference to the counterclaim, should have been stated at the time agreement between the parties, his sole remof making the motion, in order that an oppor-edy would have been to procure its reformatunity might be given to obviate the alleged de: tion, and when an effort was made to enforce fect or defects. Binsse v. Wood, 37 N. Y. 532; Hubble v. Von Schoening, 58 Barb. 498; Bay- the bond against him he could not contradict lies Trial Pr. 226, 227; Thayer v. Marsh, 75 the terms thereof by parol evidence, except An appeal from an order granting a new trial by proper allegations in his pleading asking 186] is only obtainable when the sole ques- for its reformation. But here the plaintiff tion relates to and will determine the merits, did not sign any bond. He signed a blank Roberts v. Baumgarten, 121 N. Y. 341; Cobb V. cient for him on the trial to prove that he and cannot be obviated upon the second trial. piece of paper, and it would have been suffisimply signed a blank piece of paper, and Earl, J. Neither party upon the trial then it would have been necessary for the de asked to have the evidence as to the counter-fendant to show that he authorized the blank claim submitted to the jury, and there is to be filled up, and how and under what cirreally no dispute about it. Mrs. Richards, cumstances the authority was given, and the wife of the plaintiff, was the daughter of what the authority was. A party who signs Mrs. Davis, the testatrix, and a paper now a blank piece of paper cannot be bound to the appearing as the bond set up in the counter-obligation written therein, unless it can be claim was signed by her and the plaintiff, in shown that he gave the person who wrote it pursuance of a family arrangement by which authority. Chauncey v. Arnold, 24 N. Y. Mrs. Davis distributed property among her 330; Dutchess & Columbia Co. R. R. Co. v. children, and agreed to take from them bonds Mabbett, 58 id. 397; Drury v. Foster, 2 Wall. to secure her support. The plaintiff and his 24, 17 L. ed. 780. There might be cases of wife and the testatrix went to a justice of the an estoppel where one who signed a paper in peace for the purpose of having a bond pre- that way would be bound by it. But in this pared and executed. It was agreed between case no estoppel arises, as the action is bethem that the testatrix should have the in- tween one of the original parties and the repterest on the amount of the bond if she need-resentative of the other party. So, the deed it; that if she did not need it, it was not fendant is not in a position to complain if the to be called for, and that nothing should be bond is given effect according to the true agreedue or payable upon the bond after her ment between the parties. Suppose the jusdeath; and that such an agreement should be tice of the peace, instead of inserting pay inserted in the conditions of the bond. ments in this bond, as agreed, had inserted When the parties called upon the justice, he therein a conveyance of real estate or a bond was not prepared to write the bond, and he for the absolute payment of the principal of produced a blank bond, and told the plaintiff a large sum of money; or, suppose the plainand his wife to sign it, and that he would tiff had signed this blank bond without ausubsequently fill it up according to the agree-thorizing anyone to fill it up, and some unment, which was stateu to him in the presence of all the parties, and that he would deliver the bond. With that understanding the plaintiff and his wife signed the blank bond, and left it with the justice of the peace. He thereafter filled it up as it now appears, binding the obligors absolutely to make the payments on the bond as therein specified during the life of Mrs. Davis. The claim of Here, so far as the bond departed from the the defendant is that the plaintiff could not agreement of the parties it was not the bond under his reply, simply denying that he of the plaintiff. The only authority the jussealed, executed and delivered the bond, show tice of the peace had was to insert in this by parol evidence what the true agreement bond the precise agreement of the parties as between the parties was, nor what instruc-directed. As he did not do that, this is not, tions were given to the justice of the peace in reference to filling up and completing the bond; and that the only remedy of the plain authorized filled it up as it now appears. In either of person had afterward [*188 these cases would the bond thus filled up and plaintiff? Certainly in neither case could it completed in form have been the bond of the have been said that the plaintiff executed such a bond. in the form it now appears, the bond of the plaintiff; and under a denial that he executed the bond he may show the circumstances un Richards v. Day-Cowen v. Paddock. der which he signed his name, and what the agreement at the time he signed it was. We are, therefore, of opinion that the order of the General Term should be reversed and the judgment of the trial term affirmed, with costs. All concur. Order reversed and judgment affirmed. The principal case is reported in 23 L. R. A. 601, where it is said to be somewhat unusual, if not, indeed, entirely novel, although there are numerous cases as to deeds in which is involved the power to authorize by parol the filling of the blanks by an agent, and others as to the filling of blanks in commercial paper, considered with respect to the peculiar character of such paper. As to blank for name in certificate of acknowledgment, see note to Milner v. Nelson (86 Iowa, 452), 19 L. R. A. 279. Upon the subject of filling in blanks in notes, see Hopps v. Savage (69 Md. 513), 1 L. R. A. 648; Palmer v. Poor (121 Ind. 135), 6 L. R. A. 469. COWEN et al. v. PADDOCK. (Aff'g 43 N. Y. S. R. 342, 17 N. Y. Supp. 387.) Henry G. Atwater, for appellants: The plaintiffs established the right to llens if they showed they were permitted by the owner to build on the land. Nellis v. Bellinger, 6 Hun, 560; Husted v. Mathes, 77 N. Y. 388; Otis v. Dodd, 90 id. 366; Burkitt v. Harper, 79 id. 273; Cornell v. Barney, 26 Hun, 134; Schmalz v. Mead, 125 N. Y. 188; Miller v. Mead, 127 id. 544. The evidence showed the consent of the de fendant Paddock to the furnishing of the work and materials upon the lot owned by her as the word "consent" is used in the Mechan- [*190 ics' Lien Act. Laws 1885, chap. 342, § 1; Schmalz v. Mead, 125 N. Y. 188; Miller v. Mead, The case must be considered as upon a nonPlace v. Hayward, 117 N. Y. 487. 127 id. 544. suit. Lary, 124 N. Y. 83, 87; Travis v. Travis, 122 The appeal should be dismissed. Wood v. id. 449, 454. Even if the judgment could be reviewed here it must be treated as one upon the merits, and wherein error has not been pointed out by any exception. C. Bank v. G., etc., Church, 127 N. Y. 361. Were the judgment less conclusive the court would not, to reverse it, consider facts not found by the referee, and as to which no finding Liens-work and materials-vendor and was requested. Burnap v. N. Bank, 96 N. Y purchaser. While the consent required by the Mechanics' Lien Law (§ 1, chap. 342, Laws of 1885) in order to make an owner liable for work done or materials furnished in the improvement of his premises need not be expressly given, but may be implied from the conduct and attitude of the owner with respect to such improvements, the facts from which the inference of a consent may be drawn must be such as to indicate at least a willingness on his part to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed. A purchaser of land under a contract giving him no right to possession until certain payments are made and a deed and mortgage executed cannot bind the interest of the vendor by the employment of labor or the purchase of materials, where the latter, upon learning of his commencement of work upon the premises, forbids its continuance until such payments are made, and in no manner recognizes his right to cause such improvements to be made. A PPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made December 31, 1891, which affirmed a judgment in favor of defendant entered upon the report of a referee. This action was brought to foreclose mechanics' liens filed by the plaintiffs upon certain premises in the city of New York owned by the defendant Margaret Paddock, for labor done and materials furnished the defendant Allen H. Wood, who, it appeared, had held a contract from defendant Paddock for the purchase of said premises. The contract was executed February 18, 1889. By it Wood was to pay $5,000 down, $15,000 on April 16, at which time and upon such payment Mrs. Paddock was to execute a deed and deliver possession. The further material facts are stated in the opinion. 125, 131; Place v. Hayward, 117 id. 487; Marion County v. Clark, 4 Otto, 278; B. R. Ins. Co. v. N. Y. T. & L. Co., 73 N. Y. 282, 291. Per Curiam. The plaintiffs brought this action to foreclose three several mechanics' liens upon premises owned by the defendant, respondent, at the corner of 124th street and 7th avenue in New York city. The notice of lien of the plaintiff Cowen specified labor done and materials consisting of cement, broken stone, building stone, brick, blue stone, and granite furnished in the erection and construction of the concrete bases, foundations, foundation walls, vaults, and stone plates of the New West End The ater building; that of the plaintiffs Post and McCord, iron beams, tie rods, and anchors for the vaults; and that of the plaintiff, Griebel, the preparation of the plans, drawings, and specifications for the entire building, and for extra work and services as an architect. The total of the three claims is $14,454. No privity of contract between the plaintiffs and the respondent is shown or claimed. It is sought to charge her property with this liability solely on the ground that the work was done and the materials furnished with her consent. Each of the notices of lien states that the work was done and the materials furnished *for the [*191 defendant, Allen H. Wood, and that he held a contract for the purchase of the premises from the respondent. They all aver that he entered into and took possession thereof, and built thereon with her consent. The cause was tried before a referee, and when the plaintiffs announced that they had introduced all the evidence they intended to offer upon this branch of the case, the respondent moved that the complaint be dismissed as to her, for the reason that it did Cowen v. Paddock. not establish such a consent on her part to the performance of the work and the furnishing of the materials as would render her or her property liable therefor under the Mechanics' Lien Law, which motion was granted, and the plaintiffs excepted. No findings of fact were made by the referee or proposed by either party. The referee filed a report consisting of a recital of the proceedings before him, with his conclusions of law, which were that the plaintiffs had failed to prove or establish either of the causes of action set forth in the complaint, and that the motion of the respondent to dismiss the complaint should be and was granted, and that she was entitled to judgment dismissing the complaint with costs, which was thereupon entered; and from an order of the General Term affirming the same this appeal has been taken. In this condition of the record the dismissal of the complaint must be deemed equivalent to a nonsuit, and, to maintain the judgment, the respondent must show that a finding by the referee that the work was done and the materials were furnished with her consent would have been so destitute of sufficient evidence to support it that it would, as matter of law, have been error. Place v. Hayward, 117 N. Y. 487. There is no material conflict in the testimony, and it was of such a character that we think a finding that the improvements set forth in the complaint were made with the consent of the respondent would have had no competent proof to sustain it. It is admitted that all the work was done and the materials furnished under contracts made between the plaintiffs and the *192] *defendant Wood, and that the plaintiffs did not know the respondent or agents in these transactions, and did not have any communications or dealings with her or them upon the subject. If she is to be held liable, it must be upon the ground that she in some manner assented to or acquiesced in what Wood did or caused to be done upon the premises. But the proof is all one way, that when she discovered he was at work upon the lot, she objected and insisted that the work must stop until he had performed the contract of purchase on his part, and had be come entitled to a deed of the property and to its possession. Her agreement with Wood gave him no right to the possession until he had paid $20,000; $5,000 down and $15,000 at the expiration of two months from the date of the contract, when a deed was to be given, and a mortgage executed for the balance of the consideration. Until these things were done, Wood had no ownership or control of the property, and no authority to create a charge thereon by the employment of labor or the purchase of materials for its improvement, except to the extent of his interest as vendee. It is obvious that the respondent and her attorneys understood that if she consented to the perform ance of any work or the furnishing of materials for the erection of buildings on the lot, before the execution of the deed to Wood and of his mortgage to her, the parties making the improvements might acquire a lien which would be superior to her title and to any mortgage which she might subsequently take from him under his contract. She manifestly intended to prevent the occurrence of such a result. The premises consisted principally of a vacant lot, and when Wood went upon it some two weeks after the contract was executed, and before the first payment of $5,000 had been made, and commenced the work of excavation for the foundation walls of the building, it does not appear that he had any permission from the respondent to do so, but on the contrary it is shown that, when she discovered he was there and had begun the excavation for the foundation of the building, she forbade the continuance of the work. Subsequently *the $5,000 [*193 payment was made, and there is some evidence that she then consented that he might finish the excavation; but the proof is very clear that she declined in the most emphatic terms to permit him to go any further until the $15,000 payment had been made as agreed. The plaintiffs' claims are not for excavating, but for work done and materials furnished after May 1st, and long after Wood was in default, and his contract had become forfeited. While it is doubtless true that the consent required by the lien law need not be expressly given, but may be implied from the conduct and attitude of the owner with respect to the improvements which are in process of construction upon his premises, still, the facts from which the inference of a consent is to be drawn must be such as to indicate at least a willingness on the part of the owner to have the improvements made, or an acquiescence in the means adopted for that purpose, with knowledge of the object for which they are employed. Schmalz v. Mead, 125 N. Y. 188; Miller v. Mead, 127 id. 544, 13 L. R. A. 701; Otis v. Dodd, 90 N. Y. 338; Burkitt v. Harper, 79 id. 273; Husted v. Mathes, 77 id. 388; Nellis v. Bellinger, 6 Hun, 561. No element of consent of this kind can be found in the present case. The respondent was not willing to have anything done upon the lot until the purchaser had performed the contract and obtained the title, and she never, by any act or omission to act, acquiesced in his assumption of authority over the property. On the contrary, she protested vigorously and repeatedly against his unauthorized and unlawful entry upon and occupation of the premises. She might have lawfully ejected him as an intruder; but she was not bound to do so; and her failure to resort to such a measure of protection did not expose her to the peril of a responsibility, which can only arise where it is shown that she consented either expressly or tacitly to the use which he was making of her property. It was sufficient if she, at all times and in all reasonable ways, repudiated his action, and refused to recog |