Burling agt. Gunther.

$35,000 for him, at six per cent interest per annum, to be secured upon certain real estate in the city of New York. In that month Earle, a clerk for Harnett, applied to the plaintiff's assignor, George H. Burling, to obtain the loan. He succeeded in doing so, and informed the defendant September 4, 1878. On that date the defendant gave to plaintiff's assignor a writing in these words:

"Mr. GEORGE H. BURLING:

BROOKLYN, September 5, 1878.

"DEAR SIR.I am ready to accept your loan on the fifth instant, at 1 P. M., provided the same has not been taken elsewhere; the commission to be $400, and, also, provided lawyer's fees can be agreed upon.

"Very truly yours,

"C. GODFREY GUNTHER."

From the evidence this was written September fourth instead of the fifth, as dated.

The defendant afterwards did nothing. On September sixth the parties, who had accepted the loan, withdrew their acceptance because the papers were not delivered as promised on the fifth, and so notified George H. Burling. This action was brought by I. Burling, assignee, to recover $400 and commissions. There was a contention of fact, upon the trial, over the question of an original employment of George H. Burling by the defendant to procure the loan. The trial in the marine court resulted in a verdict for $400 in plaintiff's favor. The defendant's motion for a new trial upon the minutes was denied, and an appeal taken from the order and judgment entered upon the verdict, to the general term of the marine court, where the judgment was affirmed upon the plaintiff stipulating to reduce the recovery from $400 to $175. The defendant appealed to this court.

C. Bainbridge Smith, for appellant.

Charles W. Dayton, for respondent.

Burling agt. Gunther.

BEACH, J.-The question of fact affecting employment and service seem to have been settled by the jury in favor of the plaintiff upon conflicting evidence, and the verdict is not against its weight. In such case it is without the province of this court to interfere with the action of the tribunal to which parties are remitted by law for the settlement of those contentions.

The general term of the marine court, however, exceeded its authority by directing an affirmance, should the plaintiff stipulate to reduce the recovery to $175. The statute limits the plaintiff's right to that amount, but the jury had power to award him less (2 R. S. [6th ed.], 1005, sec. 1). The case was given to them under an absolute instruction to allow him $400, in case they found in his favor upon other questions. In my opinion the general term of the marine court, by its action, has usurped the functions of a jury in fixing absolutely the quantum of plaintiff's recovery at the statutory limit. No adjudication in the books upholds so broad a construction of the power given an appellate court to reverse, affirm or modify a judgment. In Sears agt. Cowen (3 Keyes, 113), the action was to recover damages for a breach of contract to sell and deliver potatoes at a certain price. The jury gave a verdiet for $500, which was reduced by the general term to $300, and so affirmed by the court of appeals. There is nothing in the report of the case to show that evidence was given upon the subject of damages, or indicating of what terms the original sum consisted.

The learned judge wrote the opinion, held the court possessed of power, on a motion for a new trial, to refuse to set aside the verdict, if the parties would consent to deduct any amount deemed excessive. The case may have been one where elements of damage, established by the proofs, were such as to enable the court to reach a conclusion upon the sum to which the plaintiff had shown a clear or absolute right. In Cook agt. Philipps (56 N. Y., 310) the judgment on the per centage agreed upon was wholly reversed by the

Burling agt. Gunther.

general term, and the court of appeals held the limit of the statute applicable, and affirmed the reversal, giving judgment absolute against plaintiff, by virtue of his stipulation. The opinion stated that the plaintiff was entitled to no more than fifty dollars upon a loan of ten thousand, and "if he could have recovered that sum, it was waived by the stipulation. Nothing in the case supports the action here. In Moffatt agt. Sackett (18 N. Y., 22) the general term reduced a judgment for goods sold and work done, by deducting twelve dollars damages, caused by unskillful work.

The referee had refused its allowance, but found it to have been from twelve to fifteen dollars. The court held there was no authority to determine the amount of unsettled damages, and where the amount was indefinite and uncertain, so doing was an assumption of the jury province. In other cases, either the principle is stated, or the facts show the reduction to have been made of amounts settled in the trial court, and in one where interest was unmistakably computed (Brownell agt. Winnie, 29 N. Y., 400; Hayden agt. The Florence Sewing Machine Co., 54 N. Y., 221; Cuff agt. Dorland, 57 N. Y., 560; Whitehead agt. Kennedy, 69 N. Y., 462.)

In the case at bar, neither the plaintiff's right, nor the defendant's liability, with reference to amount, has ever been passed upon by the tribunal wherein such issues are settled. It appears the jury were misled by an erroneous instruction, and the general term of the marine court endeavored, instead of ordering a new trial, to adjudicate what the plaintiff was entitled to. This was beyond their power, the needed facts not having been found on the trial.

The judgment should be reversed, and a new trial ordered, with costs to abide event.

VAN BRUNT, J., concurred.

Weyh agt. Boylan.

SUPREME COURT.

GEORGE WEYH agt. FELIX BOYLAN and others.

Mortgage foreclosure - Revival-Effect of lis pendens on subsequent purchaser-Code of Civil Procedure, sections 765-1661.

In an action to foreclose a mortgage a grantee, subsequent to the filing of the lis pendens, is bound by all the proceedings in the action to the same extent as if he were a party, and his equity of redemption is cut off by the decree.

Where A. commenced an action against B. to foreclose a mortgage, and, after lis pendens filed, B. conveyed the premises to C., and thereafter B. died and C. was made his administrator. The action was revived against C. as administrator of B., deceased:

Held, that the action was properly revived, and C.'s equity of redemption cut off by the decree (Affirming S. C., 62 How., 397).

First Department, General Term, March, 1882.

Before DAVIS, P. J., BRADY and DANIELS, JJ.

THIS is an appeal, by the assignee of the purchaser at the foreclosure sale in above action, from an order made by judge BARRETT, on the 16th day of February, 1882, compelling him to complete the purchase, notwithstanding the objections made by him to the title which the deed of referee could confer. The facts fully appear and will be found in the report of the case at special term (62 How., 397).

Townsend & Mahan, for appellant, purchaser.

L. P. Kirchies, attorney, and Jacob A. Gross, of counsel, for respondent.

PER CURIAM.- We are of the opinion that this case was properly disposed of by the court below for the reason assigned in the opinion of BARRETT, J., which we adopt as our own.

On looking into the judgment roll in the case produced on the argument, we find that the judgment was in fact given

Matter of Bayard.

upon findings of fact against Michael S. Boylan, both as administrator of Felix Boylan and individually. This circum. stance is a controlling one, while the judgment record stands in its present form.

No irregularity appears upon which the judgment can be adjudged void, and even if there were an irregularity in the form it cannot be corrected by us to the prejudice of the plaintiff; and would not be at special term on motion of Boylan for such a purpose as to enable him to assert that he, as a subsequent purchaser, is not affected by the lis pendens in the action.

The order should be affirmed, with ten dollars costs, besides disbursements.

SUPREME COURT.

In the Matter of ISADORE BAYARD.

Constitutional limitations upon local legislation — Cruel and unusual punishment - Recorder of city of Cohoes -his power to punish the crime of petit larceny more severely than in other parts of the state — Constitutionality of chapter 456, section 29, Laws of 1880.

The courts are at liberty to declare a statute unconstitutional only when it conflicts with some express provision or limitation of the constitution. They ought not to, nor can they declare a law invalid because in their judgment it conflicts with the spirit supposed to pervade the constitution but not expressed in words. When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation.

The law of 1880 (Laws of 1880, chap. 456, sec. 29), giving the recorder of the city of Cohoes power to punish the crime of petit larceny more severely than in other parts of the state, is constitutional. The punishment of petit larceny in the city of Cohoes by imprisonment for one year, when outside of that city it is punishable but by six months' imprisonment, is not a cruel and unusual punishment, so that the law authorizing it is invalid (Reversing S. C., 61 How., 294).

Third Department, General Term, November, 1881.