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and 123 New York State Reporter to was theretofore in the Colonial Brewery. The record shows that the Colonial Brewery had title. The appointment of the receiver in bankruptcy did not terminate the relation of landlord and tenant. They took the unexpired term of the lease as an asset of the bankrupt, and, when in their bill of sale they sold to the defendants Katz and Stein all the “property, assets, and effects of the said Colonial Brewery," it divested the latter of the assigned lease, and vested title in the purchasers. In view of the form in which the bill of sale is drawn, it is unimportant that the lease is not specifically set out in the schedule. The schedule assumes merely to set out certain items of movable personalty as to which there might be dispute or doubt as to the quantity. That this is the correct construction is quite apparent from other parts of the instrument. Thus the bankrupt's loan and mortgage accounts are not specified in the schedule, and yet that they passed under the previous transfer of all the "property, assets, and effects” is apparent by certain provisions in sections following the schedule, which do not in terms sell the accounts, but assume that they have been sold. In other words, the schedule does not purport to be a complete enumeration, but merely to define certain items of personalty. The Horan lease is not excepted by any provision of the bill of sale, and clearly passed to the defendants Katz and Stein. That Katz and Stein bought on behalf of the defendant Eastern Brewing Company is not reasonably open to question on the state of the record. At the first trial it was conceded that such tenancy as existed was that of the brewing company, the defense being that a renewal of one year had been promised to the brewing company. Rent was paid by the brewing company as such; it had entered into possession; its president admitted that it had bought out the assets of the Colonial Brewery. Frequent answers of the president, Katz, both on direct and on cross-examination, proceeded on the assumption and recognition of an existing lease by and on behalf of his company. Without reviewing the testimony, it will be sufficient to say that we believe that the claim of proof from Horan to the defendant Eastern Brewing Company is complete, and that there has been no effective destruction of the privity of estate necessary to sustain these proceedings.

On the state of facts now disclosed, we think the case of Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197, 25 N. E. 332, now first sufficiently called to the court's attention, becomes a controlling authority. This case answers nearly every objection raised by respondents. Their own citation from this case is misleading, as they quote as authority the statement of a principle which the court qualifies by asserting that it is "open to question.” The statement of the legal proposition actually decided in that case may well be invoked in support of our present conclusion on the facts as now developed. “Where a person other than the lessee is shown to be in possession of leasehold premises, the law presumes that the lease has been assigned to him. *

It further presumes that the assignment was sufficient to transfer the term and satisfy the statute of frauds. * * The appellant company, therefore,

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under the facts proved, became prima facie liable as assignee of the lease during the period that it operated the road. This involved the obligation to perform all covenants running with the land that were broken during said period, including the covenant to pay rent, or that which stood in the place of rent.

Pages 219, 220, 122 N. Y., page 337, 25 N. E.

The Frank Case is also authority for the proposition that, while the person sought to be charged as assignee may rebut the presumption by proof of the actual facts, yet the burden is on him. But in that case, as in this, "there was a failure to meet the burden of proof resting on the putative assignee, and hence the presumption arising froni possession ripened into a fact.” Page 220, 122 N. Y., page 338, 25 N. E.

We think the final order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

(96 App. Div. 157.)

SPONENBURG v. CITY OF GLOVERSVILLE. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. INJUNCTION-STAY-POWER OF COURT.

Where a judgment restraining the pollution of a creek with sewage provided that the injunction should be suspended until January 29, 1903, and that defendant should have leave to apply to the Supreme Court for a further extension for such reasonable time beyond such date as might be necessary for the obtaining of proper legislation or the establishment of a different system of sewage for the city, the granting of an extension for a year after the date specified did not exhaust the court's jurisdiction, nor prevent it from granting further extensions, so long as there

was reasonable ground therefor. 2. SAME-DAMAGES-ACCEPTANCE,

Where the court awarded plaintiff $16 as damages, and directed defendant to pay the same as a condition to granting a stay of an injunction, plaintiff was not bound to accept such sum in full of his damages, but was entitled to decline the same and thereafter have his damages determined by a jury or by a commission.

Parker, P. J., dissenting.
Appeal from Special Term, Montgomery County.

Action by George H. Sponenburg against the city of Gloversville. From an order granting a further stay of an injunction (87 N. Y. Supp. 602), plaintiff appeals. Affirmed.

Argued before PARKER, D. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

M. D. Murray (Andrew J. Nellis, of counsel), for appellant.
William A. McDonald, for respondent.

SMITH, J. The judgment of the court has restrained the defendant from polluting the waters of Cayadutta creek by discharging its sewage into said creek. The plaintiff is a lower riparian owner, who complained of the acts of the defendant as constituting a nuisance. In the judgment it was provided that the injunction was suspended until January 29, 1903, and "that the defendant and 123 New York State Reporter should have leave to apply to this court at a Special Term to have the operation of said judgment further suspended for such reasonable time beyond January 29, 1903, as may be necessary for the obtaining of appropriate legislation or the establishment of a different system of sewage for said city.” This extract from the judgment is taken from the affidavits in the case. The original judgment is not in the record. On the 31st day of January, 1903, an order was made by Justice Houghton for the further suspension of that injunction for one year from January 29, 1903. The order here appealed from is an order still further suspending the injunction for a year from January 29, 1904.

To this order the appellant makes three objections: First, that the court is without power to further suspend the operation of the injunction. The argument of counsel is that, the right reserved in the judgment to further suspend the operation of the injunction for a reasonable time having been once invoked, it could not be again invoked, and that the time fixed when the application was first made must be deemed final, as though the judgment gave no further right to apply for a suspension. Without discussing the inherent power of the court to suspend the operation of its judgment, we have no doubt that the right given by the judgment itself exists so long as reasonable ground appears for the further suspension of the operation of the injunction. In January, 1903, it was no more possible to tell absolutely what would be reasonable further time than it was at the time the judgment was rendered. The nature of the right itself and the object to be accomplished thereby clearly mark the extent of the right, as a right, to apply so often as reasonable ground exists therefor.

The appellant still further objects that, even though the court had discretion, the facts of the case at bar were not such as to warrant its exercise. While the defendant was contributing only onethird to the pollution of the stream, it could hardly be expected to condemn the rights of the lower riparian owners for which it might result in its paying practically full value. The only alternative was to provide some system that should care for the sewage in such a way as to render it. unnecessary that it should be cast into this stream. It is not clear that the authorities of the defendant have acted in perfect good faith in yielding obedience to the judgment of the court. Much more might clearly have been done in the time allotted. It is not without considerable hesitation that we have determined to affirm the order, in the light of at least some unnecessary delay in the defendant in conforming to the judgment of the court. It should be borne in mind that the courts will not tolerate sloth in the authorities of the defendant city in yielding obedience to its judgment, and, if once satisfied of their bad faith in attempting to conform to the judgment, the punishment will be sure. We should find it difficult to approve of any further extension than the one now given, unless upon facts much stronger than those that appear in the defendant's behalf in this application.

The order further provides that this injunction is further suspended upon condition of the payment of $16 as damages to the plaintiff and of $10 costs of the motion. The plaintiff's third objection to this order is that the court has no right to determine those damages, but, as it is the taking of private property for public use, the plaintiff had the constitutional right to its determination by a jury or by a commission appointed. The answer to this objection lies in the fact that the plaintiff is not bound to accept this amount as his damage. The granting of an injunction by a court of equity rests in the discretion of the court. It may be conditioned as to the court shall seem proper. As a condition for the relief granted to the defendant, the court requires a tender upon its part of what it deems to be the damage caused to the plaintiff by the granting of that relief. Without any reservation in the order, the plaintiff still has the right to have his damage assessed under the constitutional provision.

The order should be affirmed, with $10 costs and disbursements. All concur, except PARKER, P. J., who dissents.

(96 App. Div. 45.)

SWEET v. HOWELL. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. VENDOR AND VENDEE-PARTIAL EVICTION OF VENDEE.

Where plaintiff purchased a hotel property, and also an easement appurtenant thereto of a riglit to take water from a spring on lands adjacent, the loss of the right to the spring by foreclosure of a mortgage on the

premises on which the spring was located constituted a partial eviction, 2. SAME-MEASURE OF DAMAGES.

Plaintiff could recover for such partial eviction only such part of the purchase price as bore the same ratio to the whole consideration that the right to which title failed bore to the value of the whole premises ; and it was error to instruct that the measure of damages was the difference between the purchase price and the value of the premises without the right to use the spring, and to exclude evidence offered to show the value of the property at the time it was conveyed to plaintiff with the right to the spring, and its value without the right to use the spring

annexed. Appeal from Trial Term.

Action by George B. Sweet against Joseph Howell, administrator of Sophia Howell, deceased. From a judgment for defendant, and an order denying new trial, plaintiff appeals. Reversed.

On April 1, 1896, this plaintiff purchased from one Sophia Howell a hotel property, consisting of about two acres of land, in the town of Hillsdale, Columbia county, and also, as an easement appurtenant thereto, the right to take water from a spring upon lands adjacent to such two acres. Such spring was a large one, furnishing water enough to supply the whole premises with all needed water; and all rights necessary to utilize and maintain the spring were made appurtenant to the hotel property. On such date a full-covenant warranty deed of the said hotel property and water rights and privileges was executed and delivered by her to this said plaintiff. The purchase price of such property was $7,000. Subsequently, and in April, 1899, the plaintiff was wholly evicted from the use and enjoyment of such easement and water rights by the foreclosure and sale thereunder of a certain mortgage, which was a lien upon the premises on which the spring was located, prior and superior to the said Sophia Howell's title. An action was subsequently brought by the plaintiff against his said grantor to recover damages for such eviction, and 123 New York State Reporter upon her covenants of seisin and for quiet enjoyment. Upon her death pending the action, the defendant, as her administrator, was substituted as defendant in her stead. The action then proceeded to trial and judgment, and, a verdict having been rendered against him for $2,075.80, damages and costs, he brings this appeal from the judgment entered thereon, and from the order denying a new trial on the minutes of the court.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

J. D. Bell (John Cadman, of counsel), for appellant.
A. Frank B. Chace & Sons, for respondent.

PARKER, P. J. The plaintiff, having been actually evicted from so much of the property conveyed to him as was included in the easement and water rights described in his deed from Sophia Howell, brings this action for a breach of the covenant of seisin and of warranty for quiet enjoyment which such deed contained. Had the title to the whole of the property therein described failed, and an eviction followed, his measure of damages would have been the $7,000 paid for such premises and interest thereon. Jenks v. Quinn, 61 Hun, 434, 16 N. Y. Supp. 240; Brown v. Allen, 73 Hun, 291, 294, 26 N. Y. Supp. 299, and cases there cited; Utica, C. & S. V. R. R. Co. v. Gates, 8 App. Div. 182, 183, 40 N. Y. Supp. 316. But, the title having failed and an eviction followed to the extent only of a portion of the property so conveyed, the plaintiff can recover such part only of "the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises.” Hunt v. Raplee, 44 Hun, 142, 155; Brown v. Allen, 73 Hun, 294, 26 N. Y. Supp. 299; Giles v. Dugro, 1 Duer, 336.

The respondent claims that this rule is not applicable to this case, because it is not one of a “partial eviction.” With this claim I cannot agree. The easement from the use of which the plaintiff has been evicted was a part of the real estate conveyed. It formed a material part of the property for which the $7,000 was paid, and by being deprived of its use he has been evicted from a portion of the very real estate that the covenants in such conveyance undertook and promised to secure to him. Therefore the authorities above cited are applicable; and though the rule is an arbitrary one, and in many instances far from just, it seems to be controlling in a case like this. The theory of the rule is that when loss occurs through failure, or a partial failure, of title without the fault of the grantor, only the purchase price, or a proper proportion of the purchase price, may be recovered back. Applying that rule to this case, a manifest error was committed on the trial, both in the admission of evidence offered by the plaintiff and in the submission of the measure of damages to the jury. The jury were told, in substance, that the measure of damages was the difference between the purchase price of the premises, viz., $7,000, and their value without the right to use the spring.

So, also, the plaintiff was allowed to ask his witnesses to this effect: Assuming that the hotel property with the easement annexed was

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