shaddock was conceded to be worthless, and a return to plaintiff would have served no useful purpose, and subsequently an offer to return all the fruit was also rejected. The defendant is not chargeable with lack of due diligence in failing to examine all of the boxes at the time the sale was made. Plaintiff's counsel proved on cross-examination of defendant's buyer that it was not the custom of the trade, in buying fruit in bulk, to open every box purchased, and that the buyer in this case would not have been allowed to do so. Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur. (43 Misc. Rep. 138.) ARONE v. LAUNDERS. (Supreme Court, Special Term, Kings County. March, 1904.) 1. ATTORNEY AND CLIENT UNLAWFUL RETENTION OF MONEY BY ATTORNEYREMEDY OF CLIENT-MOTION-ACTION. A motion that the court summarily require plaintiff's attorney to pay over to him money collected and unlawfully retained by him will be denied, and plaintiff remitted to an action. Action by Raphael Arone against Michael J. Launders. Motion to summarily require plaintiff's attorney to pay over to him money collected in the action and unlawfully retained by him. Motion denied. John P. Lee, for the motion. Charles A. Dryer, opposed. GAYNOR, J. In view of the decision in Matter of Pollock, 69 App. Div. 499, 74 N. Y. Supp. 976, I think I should remit the plaintiff to an action against his attorney. It has always been deemed that the court had the power and that it was its duty to summarily adjust such disputes between clients and their attorneys; but in that case the proceeding was dismissed on appeal, and the applicant remitted to his action. It cannot be that was done simply because the justice who heard the case remarked (as is there stated) in rendering his decision after a full hearing, that no request had been made by the attorneys proceeded against to remit the applicant to an action, forgetting that such a request had been made and denied at the outset. It would be attributing to the appellate court a hypercriticism which cannot exist in the administration of justice without causing much injustice, to understand that it dismissed the proceeding because such a harmless remark was made. The record showed that a motion had been made on the return day of the order to show cause to remit the applicant to an action, and denied. What sort of justice would it be to throw the applicant out of court on appeal because when the justice who heard the case was on a later date rendering his final decision after a full hearing he had forgotten that he had been requested at the first hearing to remit the applicant to an action, and had denied the motion? It must be as 1. See Attorney and Client, vol. 5, Cent. Dig. § 266. and 122 New York State Reporter sumed that the decision was not put upon such a frivolous pretext as that, but that it means that in this judicial department such disputes will no longer be heard on summary application, but only by action. The said remark of the justice was mentioned for some reason, presumably; but due respect for the learned appellate court forbids that its decision should be deemed to have been based thereon. The application is therefore denied, and the plaintiff remitted to an action. (43 Misc. Rep. 153.) EATON V. HALL. (Supreme Court, Trial Term, Kings County. March, 1904.) 1. LANDLORD AND TENANT-DISPOSSESSION OF TENANTS-RIGHTS OF THIRD PERSON. Where a landlord lawfully dispossesses tenants of a single room occupied as an office without making a party to the proceedings a person who had hired deskroom from the tenants, such person cannot subsequently maintain an action against the landlord to recover damages alleged to have been suffered from the dispossession, since he had no estate or interest in the realty. Action by Walter R. Eaton against Charles W. Hall. Verdict directed for defendant. Plaintiff moves for a new trial. Motion denied. See 79 N. Y. Supp. 887. W. S. Armstrong, for plaintiff. GAYNOR, J. The defendant let one room to Reavy & Shook, attorneys at law, for an office. They occupied it, but let deskroom therein to the plaintiff by the month. There were no partitions; the office was in common, except that each desk had its place. The defendant took summary proceedings against Reavy & Shook under the landlord and tenant act, and they were dispossessed by a city marshal under the final order. At the same time the defendant removed the desk of the plaintiff, and his few other small chattels, the marshal declining to do so because he was not a party to the proceeding; and for being so dispossessed this action is brought for damages. I do not think that the plaintiff had any tenancy or right apart from or outside of that of Reavy & Shook. He had no estate or interest in the real estate. His position was no better than that of one with a room in a boarding or lodging house. He had to go out with them. Wilson v. Martin, I Denio, 602; Smith v. Rector, 107 N. Y. 619, 14 N. E. 825. Motion denied. (43 Misc. Rep. 151.) EICHENAUER v. RENTZ CANDY CO. (Supreme Court, Trial Term, Kings County. March, 1904.) 1. PAROL EVIDENCE-CONTRACT OF EMPLOYMENT-TERM. Parol evidence is inadmissible to show that the term agreed upon by the parties to a written contract of employment at a fixed price per week, but not expressly mentioning any term. was for one year. Action by Frederick Eichenauer against the Rentz Candy Company to recover damages for breach of a contract of employment. Motion by plaintiff on the minutes for a new trial. Motion denied. The contract referred to in the opinion, was as follows: "Jan. 20, 1902. "Agreement between F. Eichenauer and the Rentz Candy Co. The Rentz Candy Co. of the first part will pay F. Eichenauer of the second part Fifteen Dollars ($15.00) per week for his services. He is to devote all of his time to their best interest and the Rentz Candy Company hereby agree to pay the said F. Eichenauer Fifteen Dollars ($15.00) per week and should the business at 318 West 42" Street be more in volume than Five Hundred Dollars ($500) per week the parties of the first part will pay the party of the second part 3% commission on all business above Five Hundred (500) up to One Thousand Dollars (1000) per week." Jacob Marx, for plaintiff. John T. Norton, for defendant. GAYNOR, J. The plaintiff wanted to give in evidence the conversation which was had at the time the contract was made and reduced to writing, in order to show that the term of one year was agreed upon. The objection of the defendant that this would vary the terms of the written agreement was sustained and the complaint dismissed. The written agreement is not ambiguous in meaning in respect of the term; on the contrary, an employment at so much a week has a settled legal meaning. Oral evidence cannot be received to change the contract by the week expressed in the writing to one for a year. It is only where the written contract does not express the particular thing at all, or anything inconsistent with it, or expresses it ambiguously, that oral evidence of it is admissible, and not always then. Wilson v. Deen, 74 N. Y. 531. The language of the opinion in Chapin v. Dobson, 78 N. Y. 79, 34 Am. Rep. 512, is very large, and will continue to need to be limited and distinguished. Eighmie v. Taylor, 98 N. Y. 294. The motion is denied. (43 Misc. Rep. 112.) COON v. SMITH et al. (Supreme Court, Trial Term, Columbia County. March, 1904.) 1. MORTGAGES-CONVEYANCE OF PREMISES TO MORTGAGEE-MERGER-CONSTRUCTION OF MORTGAGE. Where a mortgagor of realty conveyed premises to the mortgagee, the deed providing that the mortgage was not to be considered as merged in the title, but was "to be held as protection to title," the provision should be construed as intended only to protect the grantee against such liens or charges on the title as intervened between the time of the execution of the mortgage to him and the time of the execution of the deed, and it cannot prevent a merger of the mortgage in the fee where there were no such liens. 1. See Mortgages, vol. 35, Cent. Dig. §§ 819, 821, 825. and 122 New York State Reporter 2. SAME-DEVISE-FORECLOSURE OF MORTGAGE. A mortgagor conveyed mortgaged premises to the mortgagee, who died and devised the property to certain persons, subject to testatrix's debts and funeral expenses. The deed provided that the mortgage was not to be considered as merged in the title, but was to be held as protection to title. Held, that testatrix's executrix, succeeding to no greater rights in the mortgage than the testatrix had in it when she died, could not foreclose the mortgage to get money to pay debts, since the effect of the foreclosure would be to defeat the devise. Action by Frances A. Coon, as executrix, etc., against Charles J. Smith and others. Complaint dismissed. This is an action to foreclose a mortgage for the sum of $3,300, executed by defendants Rufus P. Smith and wife, to Julia A. Smith, the plaintiff's testatrix, on the 31st day of March, 1883, on a farm situated in the town of Ancram, N. Y. On the 15th day of April, 1898, the mortgagors conveyed said mortgaged premises to the mortgagee, who thereupon took full possession thereof, and remained in possession until her death. By the deed of conveyance from the mortgagors to the mortgagee, it was provided that "said mortgage was not to be considered as merged in that title, but was to be held as protection to title." Julia A. Smith, such mortgagee and grantee, died in January, 1902, leaving a last will and testament, whereby she devised said real estate to the said plaintiff, Frances A. Coon, and the defendant Mary C. Williams, as trustees, in trust for the care, support, and maintenance of the defendant Milton H. Smith during his lifetime, the remainder thereof to go to the plaintiff and the defendants Charles J. Smith, Rufus P. Smith, and Mary C. Williams; but this devise was made subject to the liens and charges thereon of the debts and funeral expenses of the said Julia A. Smith. It is claimed by the plaintiff that there are debts and funeral expenses which are liens and charges upon such real estate. The plaintiff, as one of the executrices of the will of said Julia A. Smith, deceased, brings this action to foreclose said mortgage. The defendants Charles J. Smith and others, devisees under the will of said deceased, defend the action on the ground that there has been a merger of the mortgage, and that the same has ceased to be a lien on such real estate. Edward F. McCormick, for plaintiff. COCHRANE, J. The general rule is that, where the title to the land and the ownership of the mortgage debt become vested in the same person, the mortgage is thereby merged and extinguished. Thomas, Mort. (2d Ed.) 257. It is also a well-settled rule that, when a greater and a less estate meet in the same person, equity will preserve them distinct, provided there is an express or implied intent to do so, and justice requires it. Spencer v. Ayrault, 10 N. Y. 204; Smith v. Roberts, 91 N. Y. 475; Sheldon v. Edwards, 35 N. Y. 279, 285. In Clift v. White, 12 N. Y. 536, it is said, in reference to this subject: "That the question is upon the intention, actual or presumed, of the person in whom the interest is united. That, if it be perfectly indifferent to the party whether the charge should or should not subsist, it sinks." The intention of Julia A. Smith, the mortgagee and grantee, is expressed in the instrument of conveyance to her of the mortgaged premises. It was therein stated that the mortgage was not to be considered as merged, but such intention was, nevertheless, qualified by the further statement that the mortgage "was to be held as protection to title." I think the "title" thus referred to meant the title as it existed at the time of the conveyance, and which was then the subject of consideration. The purpose of this provision in the deed was to protect the grantee against any liens or charges on the title which might have. intervened intermediate the execution of her mortgage and the deed of conveyance to her of such mortgaged premises. It is conceded that there are no such liens. The clause in the deed under consideration, that the mortgage was to be held as protection to title, adds nothing and is meaningless, unless it is a qualification or limitation of the general statement that the mortgage was not to be considered as merged. The plaintiff seeks to construe the entire provision as if the last clause had not been used. The entire provision must be so construed, if possible, as to give effect and meaning to each part thereof. This can only be done by limiting the provision against the merger to the protection of the title as it then existed. We must attribute to the parties to the conveyance a fair and honest purpose. It is by no means probable that Mrs. Smith intended to hold the mortgage as a "protection" against her own subseque t acts. Suppose, for instance, that she had subsequently executed a mortgage or a deed of said premises, either with or without covenants; could it be reasonably claimed that she could have enforced this mortgage in question as against her subsequent mortgagee or grantee? In Starr v. Ellis, 6 Johns. Ch. 395, 397, Chancellor Kent, in speaking on this question, said: "A court of equity will keep an incumbrance alive, or consider it extinguished, as will best serve the purposes of justice and the actual and just intention of the party. It must, at all events, be an innocent purpose, and injurious to no one. * * * It [the mortgage] could not be of any use but a mischievous one as against subsequent purchasers or incumbrances, and for such a purpose the merger is not to be prevented." The construction contended for by the plaintiff would make the merger clause in the deed not merely a protection to title, but a weapon in the hands of the grantee as against her own subsequent acts. The plaintiff in this action takes no greater right to the mortgage in question than her testatrix had during her lifetime. And if the latter could not enforce the mortgage against those claiming under her, the plaintiff cannot enforce it against these devisees who have succeeded to the title under the will of the deceased. It may also be observed that, if this action can prevail, a judgment of deficiency may also be recovered against the maker of the bond. Moreover, there is positive indication that the testatrix did not intend that the mortgage should be enforced as against these devisees. It is stated in the brief of the learned counsel for the plaintiff that the conveyance in question was for the sum of $1. The inference from this is that the equity of redemption in the premises was valueless, and that the only consideration for the conveyance was the mortgage then on the property. If the plaintiff's theory is correct, that this mortgage is in force for the purpose of this action, we must ascribe to the testatrix the inconsistent and unreasonable purpose of devising merely a naked title which she intended should be cut off by such an action as this. This action will completely defeat the devise in question. The theory of an intention on her part to keep alive the mortgage is inconsistent |