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First Department, November, 1911.

[Vol. 146. action of covenant broken. The court upheld a demurrer to the declaration which was by a subsequent grantee through mesne conveyances of a grantor of certain lands in Vermont, the deed containing a warranty, and there having been a judg. ment of eviction in Vermont against the plaintiff by a holder of an older title. RICHARDSON, Ch. J., said: “In general, actions founded upon contracts are transitory although made and even stipulated to be performed out of the State for debitum et contractus sunt nullius loci. But when the action is founded upon privity of estate it is local and lies only in the place where the land is. 1 Chitty's Pl. 274; Comyn's Digest 'Action ’N, 4; 2 Salkeld, 651, Way v. Yally; 1 Salkeld, 80, Barker v. Damer; 1 Shower, 187; S. C.; 6 Mod. Rep. 194, W'ay v. Yally; 6 Mass. Rep. 331, Lienow v. Ellis; 5 Cowen, 18*; 1 Wilson, 165, Thrale v. Cornwall. It is very clear that this action is not founded upon any privity of contract between the parties but upon privity of estate. * And it is settled that not only real actions are local, but that all actions founded on any privity of estate in land are also local. Whether it might not have been better if the law had been otherwise settled in this respect, it is not for us to say. We sit here to determine not what the law should be, but what it is," and sustained the demurrer.

Clark v. Scudder (6 Gray, 122), decided in 1856, was an action of contract in the Supreme Judicial Court of Massachusetts, in the nature of covenant broken upon a covenant contained in a deed of land, situate in Illinois, for peaceable enjoyment and warranty. Plaintiff claimed through several mesne conveyances. Upon the trial the chief justice, LEMUEL SHAW, ruled that as this was an action on covenant running with the land, brought by an assignee of the covenantee, the land being situate out of the Commonwealth, the court had no jurisdiction, and a nonsuit was entered, subject to the opinion of the full court. This was given by METCALF, J., as follows: “This case cannot be distinguished from that of Lienow v. Ellis, 6 Mass. 331, where it was decided that an action of covenant concerning land, brought by the assignee of the covenantee

Bracket v. Alcord.-[REP.

App. Div.]

First Department, November, 1911. against the covenantor, was local and could be maintained only in the county where the land was situate. The same point was decided in the same way in White v. Sanborn, 6 N. H. 220, and Birney v. Haim, 2 Littell, 262. There is no privity of contract between the plaintiff and the defendants, but merely a privity of estate; and when an action is founded on privity of estate only it is local, as is shown not only by the above cited cases but by numerous other books. 1 Tidd's Pract. (1st Amer. ed.) 373; 1 Selw. N. P.(11th ed.) 517; 1 Saund. Pl. & Ev. (2d ed.) 865; Mayor, &c., of Berwick upon Tweed v. Shanks, 3 Bing. 460. The plaintiff contends, however, that as both he and the defendants are inhabitants of this State he is without remedy, unless he can maintain an action here, and that for this reason the court should sustain this action. Lord MANSFIELD once yielded to this consideration (Cowp. 180), at nisi prius, but he was overruled, Doulson v. Matthews, + T. R. 503. See, also, Shelling v. Farmer, 1 Stra. 646; Chit. Pl. (6th Amer, ed.) 302; Story Confl. $ 554. Nonsuit to stand.”

Doulson v. Matthews (+ Durn. & East. [+ T. R.] 503), decided in 1792, was an action in the King's Bench of trespass for entering the plaintiff's dwelling house in Canada and expelling him. Lord KENYON on the trial was clearly of opinion that the cause of action stated was local, and plaintiff was nonsuited. ERSKINE moved to set aside the nonsuit, observing that this was not an action to recover the land, but merely a personal action to recover a satisfaction in damages, which was transitory, and might be tried here. BULLER, J., said: “It is now too late for us to enquire whether it were wise or politic to make a distinction between transitory and local actions. It is sufficient for the courts that the law has settled the distinction, and that an action quare clausum fregit is local. We may try actions here which are in their nature transitory, though arising out of a transaction abroad, but not such as are in their nature local."

That case was followed by Chief Justice MARSHALL in Livingston v. Jefferson (1 Brock. 203), and by Chancellor WALWORTH in Watts v. Kinney (6 Hill, 82), who said, referring to the Livingston case: “And one of the ablest judges (who) has

APP. Div.- VOL. CXLVI. 51

First Department, November, 1911.

[Vol. 146. adorned the bench of this or any other country, after a full and elaborate argument of the question before him, has pronounced the decision in Doulson v. Matthews to be in accordance with the settled principles of the common law."

Mayor, Bailiff & Burgesses of the Borough of Berwick. upon-Tweed v. Shanks (3 Bing. 460) was an action in the Common Pleas upon a covenant by the lessors against the assignee of a term in certain premises, alleged in the declaration to be situate within the liberties of Berwick-upon-Tweed. The venue was laid in Northumberland. There was a general demurrer and joinder. Best, Ch. J., said: “The action is undoubtedly local because it arises on privity of estate and not on privity of contract. Our judgment, therefore, must be for the defendant."

In Port v. Jackson (17 Johns. 239), which was an action on a covenant for the payment of rent, the court said: “What I have said, and the cases that have been referred to show, that the assignment by the defendant to Graham, and the acceptance by the lessor of Graham as his tenant, do not discharge the defendant from this covenant, and that his liability does not arise out of the privity of estate, but the privity of contract; and this is an answer to the objection that has been made, that this action is local, the covenant having been made in England, and that no suit, therefore, can be maintained upon it in the courts of this State. The suit is brought on the express covenant, which remains in full force after the land is gone, and is founded on a privity collateral to the land. Like every other personal agreement it is transitory in its nature, and may be tried here, though arising out of a transaction abroad. (Doulson v. Matthews et al., 4 Term Rep. 503.)"

In the case at bar, the action being by a remote grantee against the original covenantor upon a covenant of warranty, is maintainable only because that warranty runs with the land and the plaintiff's right depends upon privity of estate; but that estate is situate in Missouri and the breach, to wit, the eviction by title paramount, is evidenced by the judgment obtained in the courts of the State of Missouri, and while the action is for damages, it accrues by reason of a transaction which could only occur in the State where the land is locatai. It is App. Div.] First Department, November, 1911. thus a local and not a transitory action and, being so, the courts of this State, upon the foregoing authorities, have no jurisdiction of the subject-matter of the action.

The interlocutory judgment appealed from should be reversed, with costs and disbursements to the appellant, and the demurrer sustained, with costs, with leave to serve an amended complaint within twenty days on payment of costs in this court and in the court below.

INGRAHAM, P. J., LAUGHLIN, Scott and DOWLING, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to serve amended complaint on payment of such costs.

WILLIAM E. WAITE, Respondent, 1. WILLIAM F. KENNY,

Appellant.

First Department, November 3, 1911.

Practice – trial — motion for direction of a verdict — power of court to

submit issues to jury – principal and agent - acceptance of benefits – evidence.

A party who has moved at the close of a trial for the direction of a verdict

may withdraw his motion at any time before the directed verdict is rendered and request to be allowed to go to the jury upon specific questions

of fact. The court may, of its own motion, submit to the jury all the issues, or

such issues as it deems to exist, even though both parties have moved

for the direction of a verdict. One who has accepted the benefits of a contract made by another as its

agent cannot prevent the one with whom the contract was made from showing what the terms were on the ground that the alleged agent had

no authority to make the contract. Evidence in an action to recover for work, labor and services performed and

materials furnished in repairing an automobile examined, and held, that a judgment of the City Court rendered on a verdict in defendant's favor, which had been reversed by the Appellate Term, should be reinstated.

APPEAL by the defendant, William F. Kenny, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the Sth day of

First Department, November, 1911.

[Vol. 146. December, 1910, reversing a judgment of the City Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 16th day of December, 1909, upon the verdict of a jury, and also reversing an order entered in the office of the clerk of said City Court on the 20th day of December, 1909, denying the plaintiff's motion for a new trial made upon the minutes; also from an order of said City Court, entered on the 4th day of February, 1911, making the aforesaid order of the Appellate Term the order of the City Court, and also from a judgment entered in the office of the clerk of said City Court directing a new trial of the issues.

Thomas H. Beardsley, for the appellant.

W. W. Niles, for the respondent. DOWLING, J.:

This is an appeal from a determination of the Appellate Term reversing a judgment in favor of defendant entered after the verdict of a jury in the City Court.

The action is brought by the plaintiff as assignee of the Automobile Club of America upon a claim of $727.47 for work, labor and services performed and materials furnished in connection with the repairing of an automobile belonging to defendant. The judgment was reversed by the Appellate Term (69 Misc. Rep. 631) upon the ground of error claimed to have been committed by the trial court in submitting questions of fact to the jury after both sides had rested and had moved for the direction of a verdict in their favor. It is well settled that, even after the making of a motion for the direction of a verdict, the party so moving may, at any time before the rendition of the directed verdict, withdraw his motion and request that he be allowed to go to the jury upon specific questions of fact. (Maxwell v. Martin, 130 App. Div. 80; Cullinan v. Furthmann, 70 id. 110; Eldredge v. Mathews, 93 id. 356.) In this case while the defendant withdrew his request for a direction of a verdict he did not ask to be allowed to go to the jury upon any specific question of fact and, therefore, the case does not come within the rule just quoted. But the court is not bound by the views of counsel upon the trial as to whether or not an issue of fact exists and may of its own motion submit the

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