Boqut v. Coburn.

mortgaged premises shall be redeemed, is well settled. (2 Hoff. Ch. Pr. 157.) But I find no authority declaring the right to redeem the entire premises, under the circumstances supposed.

It is not necessary to pursue this question. The learned referee has permitted Coburn to retain that portion of the mortgaged premises, the title of which remained in Smith, the mortgagor, upon his delivering the possession of the residue. to the respective owners, and releasing and discharging the same from his mortgage and paying costs. What more can Coburn ask? It seems to me that this saves all his equities. He has an election, and if he so elects, then the plaintiff must redeem all the premises. If he prefers to retain the portion. of which Smith was seised, it will be evidence that it was and is sufficient to satisfy the mortgage; and if so, he cannot, as against the grantees of different portions of the premises, who were not parties to the foreclosure suit, claim to hold their portions. If the premises which he is permitted to retain would have been insufficient, at the time of sale, to produce the amount owing upon the bond and mortgage, or would be insufficient now, it is to be observed that he has had the rents and profits of the remaining lands for many years, and they are to be taken into the account. It comes to this: assuming that the accounting is right, Coburn has his election to retain the Smith land and pay costs, and then the whole account will be settled. If these lands are worth more than the balance found in his favor, he will retain the lands; if less, then he may take the balance due to him, and the plaintiff will redeem all and take all. Why is not this strictly equitable?

But another question is made by Coburn. In taking the account, the referee has disallowed certain charges made by Coburn for permanent improvements, some $700, made before the commencement of the action, and $2000 since its commencement. I have come to the conclusion that the judgment ought not to be reversed for the disallowance of these items. The referee has been governed by the principles applicable to accounting between the mortgagor and a mortgagee

Boqut v. Coburn.

in possession. But the question is now put in this form: suppose that these permanent improvements were placed upon the premises which Coburn is permitted to retain the Smith lands-then it is argued that injustice may be done to Coburn-that he may be compelled to elect to retain these lands in order to save the $2700 expended by him; whereas, without the expenditure of this money the land would not be worth the amount now due him; and it is argued that the plaintiff had no absolute right to redeem this land, and that the referee has so decided, in giving to Coburn the right to retain it. It may be a sufficient answer to these positions, to say that it does not appear, from the case, upon what portion. of the premises these improvements were made, and the appellant should show errors. If the improvements are upon the parcels of land conveyed by Smith to others, Coburn will of course lose them. If upon his land, then he retains them, in case he elects to keep the land. If they had not been made, the judgment would have been as it now is, and then he could retain the land or not, as he should elect. The referee probably was of the opinion that it was not material upon what portion of the mortgaged premises those improvements were made. That in making them, Coburn acted at his peril, under the situation of the entire mortgaged premises and the relation of the parties to it, and I am not prepared to say that such opinion is erroneous.

I think the judgment should be affirmed, with costs.

[GENESEE GENERAL TERM, May 17, 1858. Grover, Marvin and Davis, Justices.]

THE PEOPLE, ex rel. Dayton, commissioner of highways of the town of Cuba, vs. MAY and others.

A corporation may appeal to the county court, from an order made by a commissioner of highways laying out a highway across a rail road.

A corporation, owing land on which a highway is laid, is a person," within the meaning of the section of the revised statutes giving the right of appeal in such cases.

OMMON law certiorari to referees appointed by the

COMM

county judge of Allegany county, upon an appeal by the New York and Erie Rail Road Company, from an order made by the commissioner of highways of the town of Cuba, laying out a highway across the rail road. The writ was brought for the purpose of reversing that portion of the order laying the highway across the rail road.

The commissioner laid out the highway in September, 1856, across the rail road, and the rail road company appealed to the county judge, who appointed the defendants referees to hear and determine the appeal. They did so, and reversed that part of the order laying the highway across the railway, and the commissioner of highways sued out this writ.

M. B. Champlin, for the plaintiff.

J. Ganson, for the defendant.

By the Court, MARVIN, J. The counsel for the plaintiff in error insists that a corporation has no right to appeal, He refers to the act of 1853, (Laws of 1853, p. 84,) and also to the highway act, (1 R. S. 518, § 84;) the statute of 1845, chap. 180, and laws of 1847, chap. 455. I have looked into the statutes referred to, and have no doubt a corporation may appeal. By the revised statutes referred to, every person who shall consider himself aggrieved, &c. may appeal, &c. The act of 1845, § 10, speaks of any party or person conceiving himself aggrieved, &c. The act of 1847 uses the words any

McCleary v. Edwards.

person. The act of 1853 is entitled "An act to regulate the construction of roads and streets across rail road tracks," and is silent as to appeals.

A corporation owning land on which a highway is laid is, in my opinion, a "person," within the meaning of the revised statutes giving the right of appeal. The design of the statute was to give the right to all parties or persons, whether natural or artificial, who should conceive themselves aggrieved. (See 15 John. 381, and cases there cited.)

The referees reversed that part of the order which the appellant, in his appeal, specified as the portion to reverse which the appeal was brought. They had jurisdiction, in my opinion, to do this.

The proceedings must be affirmed.

[GENESEE GENERAL TERM, May 17, 1858, Grover, Marvin and Davis, Justices.]

MCCLEARY vs. EDWARDS.

It is no objection to receiving in evidence a deposition taken on a commission, that the return to the commission is indorsed upon the interrogatories, which, together with the deposition, are annexed and secured to the commission.

By an instrument in writing dated Nov. 27, 1852, the defendant, for a rent of $2000 paid to him in advance, leased to the plaintiff the two bars or saloons on the steamers Southern Michigan and Northern Indiana, "for the season of navigation of 1853." By another instrument of the same date, the defendant, in consideration of the promissory note of the plaintiff, for $2000, payable March 1, 1853, agreed to lease to the plaintiff the two bars or saloons to be on two new steamers then building by B. B. & Co., " for the season of navigation of 1853, commencing on the first day of May in said year." Held that the defendant undertook that the plaintiff should have and enjoy the use of the bars and saloons for the "season of navigation;" not simply for the time the boats should be navigated or employed in transporting passengers.

And the plaintiff having been deprived of the possession during a portion of the season, by the delay of the defendant in getting the saloons fitted up,

McCleary v. Edwards.

and by the steamers being laid up a part of the summer, it was further held that the plaintiff had a good cause of action for the breach of the agreement. And that the proper measure of damages was the amount of rent paid for the use of the saloons while the plaintiff was deprived of their use, at the rates specified in the leases, with interest on the same from the close of navigation in 1853.

THE

THE defendant executed contracts as follows: "For and in consideration of the sum of $2000 in cash to me paid by Richard McCleary, the receipt of which I hereby acknowledge, I hereby lease to said McCleary the two bars or saloons on the steamers Southern Michigan and Northern Indiana, for the season of navigation of 1853. Dated Buffalo, November 27, 1852."

"Whereas Richard McCleary, of the city of Buffalo, has this day executed and delivered to me his promissory note, falling due and payable on the first day of March, 1853, for the sum of $2000, therefore I hereby agree to lease unto said McCleary the two bars or saloons to be on the two new steamers now building by Messrs. Bidwell, Banta & Co. (for R. V. Roberts of New York,) for the season of navigation of 1853, commencing on the first day of May in said year. Dated Buffalo, Nov. 27, 1852."

This action was brought for a breach of these contracts. The plaintiff offered in evidence the deposition of a witness, taken upon commission. The return to the commission was indorsed upon the interrogatories, which, and the deposition of the witness, were annexed and secured to the commission. The defendant objected to the reading of the commission. The objection was overruled, and the defendant excepted

The plaintiff proved that the business for which the saloons were adapted was selling fruits, cigars, liquors and other things, to persons on the boats; that the boats were laid up a part of the season of navigation of 1853, and that during such time the saloons and bars could not be used and occupied as saloons and bars. He also proved that the new boats were not finished until the 7th and 8th of July, and that the saloons, on the Southern Michigan and Northern In