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Opinion of the Court, per CHURCH, Ch. J.

ground that “the plaintiff

' has not a cause of action," which motion was denied and defendants excepted.

R. W. Van Pelt for the appellants. The notes were voidable, not void, and plaintiff cannot avail himself of the defence of usury. (Draper v. Trescott, 29 Barb., 401; Dix v. Van Wyck, 2 Hill., 522; Post v. Bank of Utica, 7 id., 391; Shufelt v. Shufelt, 9 Paige, 591; Ferris v. Cravoford, 2 Den., 598; Mechanics' Bank v. Edwards, 1 Barb., 271 ; Morris v. Floyd, 5 id., 130; Murray, v. Judson, 9 N. Y., 73; Mason v. Lord, 40 id., p. 476 and cases cited; Berry v. Thompson, 17 Johns., 436; Lansing v. Eddy, 1 Johns. Chancery, 49.)

James C. Carter for the respondent. The exception to the refusal to dismiss the complaint raises no question in this court. (Bauff v. Mali, 36 N. Y., 200, 204; Carman v. Pultz, 21 id., 547; Grant v. Morse, 22 id., 323; Trustees of St. Mary's Church v. Cayger, 6 Barb., 576; Binsse v. Wood, 37 N. Y., 526; Castle v. Duryea, 32 Barb., 480; Kane v. Towsley, 51 id., 386.) Where the thing delivered on a contract of sale differs in kind from what it was represented, the purchaser may return it and recover the price, and it is not necessary to allege or prove fraud. (Benjamin on Sales, 442, et seq.; Kerr on Fraud and Mistake, Am. ed., 62, et seq.; Nichol v. Godts, 10 Exc., 191; Jones v. Ryde, 5 Taunt., 488; Young v. Cole, 3 Bing. N. C., 724; Gurney v. Womersly, 4 E. & B., 133; Gompertz v. Bartlett, 2 id., 849.) The transaction being between the parties without notice of any other principal than defendants, the action was properly brought against them. (Gurney v. Womersly, 4 E. & B., 133.)

CHURCH, Ch. J. At the close of the plaintiff's case, the defendants' counsel moved to dismiss the complaint upon the ground “that the plaintiff has not a cause of action.” The motion was denied and the defendants excepted. The motion was too general. It should have specified the particular

Opinion of the Court, per CHURCH, Ch. J.

defect in the complaint or in the evidence, so that the court could have passed upon it, and the other party have had the opportunity to supply the defect in the evidence, or move to amend the complaint. Such an exception is not in general available in this court. (Binsse v. Wood, 37 N. Y., 526.) It could not be available if any view of the evidence would sustain a cause of action, and not then unless it appeared that the defect could not be supplied. But the evidence of the plaintiff tended strongly to establish a perfect cause of action for a rescission of the contract for the purchase of the notes in question, and a recovery of the consideration paid. It is a general rule that upon the sale and delivery of personal property without fraud or warranty, no action will lie against the vendor to recover damages for any defects which may exist, and this rule applies when the article differs from the representations of the seller, as to quality, unless such representations were fraudulent. But when the thing sold differs in substance from what the purchaser was led by the vendor to believe he was buying, and the difference in subject matter is so substantial and essential in character as to amount to a failure of consideration, there is no contract, and the purchaser may recover back the money paid. (Kerr on Fraud and Mistake, 58 et seq.) Such was the cause of action set up in the complaint, and which the plaintiff's evidence tended to establish. The notes were represented to be business paper, and purchased as such by the plaintiff, at eighteen per cent discount. They were, in fact, accommodation notes, and were usurious and void in the plaintiff's hands. They appeared like business paper, but were radically different; so different as legally to change their nature as well as their marketable value. The maxim caveat emptor has no application in such a case.

In Gompertz v. Bartlett (75 Eng. Com. Law, 819), an unstamped bill of exchange indorsed in blank, purporting to be a foreign bill, was sold without recourse. It proved to have been a domestic bill, and was unavailable without a stamp, although both vendor and vendee were ignorant of

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Opinion of the Court, per Church, Ch. J.

the defect, and it was held that the purchaser was entitled to recover back the price from the vendor, on the ground that it did not answer the description by which it was sold. A similar decision was made upon the sale of forged paper as genuine. (Gurney v. Womersley, 82 Eng. Com. Law, 133; see also Benjamin on Sales, § 442 et seq., and cases there cited.) I am unable to see why this case does not fall within the principle of these authorities. It is claimed that, although the notes are declared void by the statute, they are only voidable at the election of the parties to them, and that the plaintiff may never be damaged in consequence of their usurious character. The answer to this is, that the defect essentially changes the nature of the article from that purchased. The defendants undertook to sell business paper which would be valid in the hands of the plaintiff, and transferred void paper. The difference is vital, and we cannot suppose that any person would advance money upon such paper. It is no answer to say that the parties to the paper might waive the defence and pay it. So the parties might have paid the unstamped bill or forged note, but there was no contract for such paper. Here the plaintiff purchased securities enforcible in the courts, and the seller delivered paper not enforcible, and possessing no legal character or value, and there was no valid consideration for the money paid. It is not material whether the defendants actually owned the notes or not. They admit the ownership of one of them, and there is evidence tending to prove that they owned all of them, but they sold them as their own, and as business paper. There is no valid exception in the case, and the judgment must be affirmed with costs.

All concur.
Judgment affirmed.

Statement of case.

THE PEOPLE ex rel. IRA O. WILLIAMS et al., Appellants, v.

JESSE P. Haines et al., Respondents.

The occupancy and use of lands for the purpose of constructing and main

taining ditches, as authorized by the provisions of the act appointing commissioners for draining certain lands in the town of Royalton, Niagara county (chap. 774, Laws of 1867), is such an interference with the proprietary interests of the owner as entitles him to the just compensation made necessary by the Constitution. (Con. of State, art. 1, 8 6.) It subjects the lands to an easement in behalf of the public, depriving the

proprietor of the full and free enjoyment of them. Nothing less than a legal title in perpetuity will serve the purposes of the

act or the object contemplated. The title to the easement can only be acquired by a grant in proper form. It was the duty of the commissioners, before entering upon the lands and constructing the ditches, to procure a grant from the owner, either by voluntary donation or for an agreed compensation, or upon an appraisal of damages as prescribed by

law. It is only for an improvement lawfully made, and for work done and

expenses incurred, as authorized by law, that an assessment can law

fully be levied and the property of the citizen taxed. But one assessment under the act aforesaid is authorized, and that is for

the completed work, including the land damages, and the commissioners cannot make it until their duties under the act have been performed. The power once exercised is exhausted, and no subsequent steps can be

taken to acquire title to the easement. Where, therefore, without the procurement of a grant of the easement in

any of the prescribed modes the commissioners entered upon lands, constructed ditches, estimated and assessed the costs of constructing, and apportioned the same among the owners of the lands benefited,- Held,

that the assessment and all subsequent proceedings were void. Whether the commissioners can proceed to acquire title and make a new

assessment, quere. (The People v. Nearing, 27 N. Y., 306, questioned.)

(Argued June 3, 1872 ; decided June 11, 1872.)

APPEAL from an order of the General Term of the Supreme Court in the eighth judicial district, affirming the proceedings of the commissioners in draining certain lands in the town of Royalton, in Niagara county.

The judgment of the Supreme Court appealed from was rendered upon the joint return of the respondents to two writs of certiorari, the one directed to Jesse P. Haines and

Statement of case.

two others, commissioners, etc., and the other to the board of supervisors.

By an act of the legislature, passed in April, 1867, Haines and his two associates were appointed commissioners for draining certain low lands in Royalton, Niagara county. (Sess. Laws of 1867, chap. 774.)

The proceedings brought up for review were taken and conducted under said act by the three commissioners therein named. They were directed by the act to cut one main ditch, from the point specified in the first section of the act, running southerly to such point on Black, or Mud, creek as the commissioners, in their judgment, should deem best to effectually drain the lands referred to. They were authorized to cut as many lateral ditches as might be necessary for the effectual drainage of the low lands mentioned.

By the sixth section of the act the commissioners are required to estimate and assess the cost of constructing the ditches they determine to make, including land damages therefor, if any, with their fees and all expenses incident thereto, and to apportion the same among the several owners or occupants of the land deemed to be directly benefited.

The same section provides that if any person upon whose lands the main or any lateral drain shall be laid out or contemplated shall refuse to allow the commissioners to enter on their lands and make the drains, or either of them, and the commissioners cannot agree with such owner upon the compensation and damages to be paid for making and maintaining forever the drains upon their lands, then the commissioners are directed to take proceedings to acquire the title to the easement upon or across the lands of the person so refusing, in the manner provided for by the general railroad act of this State.

By the seventh section of the act it is provided that the estimate of the benefits and of the damages shall be made out, signed and filed by the commissioners, and the same is to become a lien on the lands designated by them.

The eighth section of the act provides that the board of

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