FIRST DEPARTMENT, DECEMBER TERM, 1874.

name of Foster, and found at the express office at Boston, while he and another person were there for the probable purpose of taking it away. This was certainly sufficient to connect the prisoner with it, and to warrant the court in receiving it as evidence, as long as no other or different objection was taken to its admissibility. It was simply objected to, because it was in no way proven to be connected with the prisoner. In view of the evidence given upon the subject, this objection was without the least colorable support.

After the box and its contents had been received in evidence, objection was made to the witness stating what the jimmies, drill and fuse were; and, after the prosecution rested, a motion was made to strike out the evidence, given as to the contents of the box, and the description of the instruments. But as the box and its contents had been received and placed before the jury, without violating any of the prisoner's rights, no harm could be done to him by permitting the officer to name the instruments produced. He waived the right to object to them as evidence, by specifically restricting and confining his objection to a particular reason, having no foundation in the case. After that, no valid objection could exist to evidence showing the names of some of the articles contained in the box. By the form in which the objection was made, the defendant, in substance, conceded that the box and its contents were proper evidence, if he had been sufficiently shown to be connected with them. After that virtual concession, and the box and its contents were received in evidence and the prosecution rested the case, it was too late to allow the motion to strike out the evidence to prevail. * No other objections have been taken to the propriety of the prisoner's conviction; and, as those considered can neither of them be maintained, the judgment should be affirmed.

DAVIS, P. J., and BARRETT, J., concurred.

Judgment affirined.

*Quin v. Lloyd, 41 N. Y., 349.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

HENRY HIRSCH v. WILLIAM S. LIVINGSTON, EXECU-
RESPONDENTS.

TOR, ETC., AND ANOTHER,

Foreclosure sale-purchaser at—when relieved from bid.

This is a motion by the purchaser of a leasehold interest in certain premises in the city of New York, sold under a judgment of foreclosure, to be relieved from his bid. The motion was made on the grounds, that the lease contained certain unusual covenants, which were unknown to him at the time of the sale, and that certain persons were not made parties to the action, who were, at the time of its commencement and of the judgment and sale, in possession of the premises as tenants. Held, that, as the tenants could not be forcibly dispossessed by any process which could be issued to enforce the judgment, the motion should be granted.

APPEAL by one Pangburn, the purchaser at a foreclosure sale, from an order denying a motion that the referee refund the deposit made by the purchaser pursuant to the terms of the sale, and that he be discharged from his bid.

A. R. McMahon, for the appellant.

M. S. Thompson, for the respondents.

DANIELS, J.:

The premises were sold under a foreclosure judgment, recovered by the plaintiff in this court, in an action in his favor against William S. Livingston and another. The interest sold in them, consisted of a term for years, created by a lease given by William B. Astor. After the appellant had bid off the property, subscribed the terms of sale, and paid ten per cent upon the purchaseprice, he declined to take the title, on account of certain restraints imposed by the lease, and because, at the time when the action was commenced, there were tenants in possession of the demised premises, who, ever since then, continued therein, that were not made parties to the action, and were not bound by the judgment. These objections were verified by the affidavits of the appellant, and have not been denied on the part of the plaintiff. For that reason, they must be assumed to be well founded in fact.

And, if

FIRST DEPARTMENT, DECEMBER TERM, 1874.

they are, then the purchaser has shown that he could not, by any legal proceedings under the judgment, acquire possession of the premises sold him, if he had taken a conveyance of the title. For, as the tenants were in possession when the action was commenced, and since remained in possession, it is clear that they could not be forcibly dispossessed by any process which could be issued to enforce the judgment.*

If such a sale would give the purchaser a title, it would fail to confer any right of possession against the tenants holding the property; and that would deprive him of an important interest, which he was justified in expecting would be acquired by his purchase. If the tenants were willing to yield up their possession to the purchaser at the foreclosure sale, that ought to have been shown as a fact, by way of answer to his motion. As long as that was not attempted, it cannot be presumed for the purpose of compelling him to receive a title plainly defective. What he had the right to suppose he was to receive by means of the purchase, was not merely a title to the interest sold, but, beyond that, the power of securing immediate possession. If he could obtain the former, the latter did not exist, because of the defective proceedings in the foreclosure action; and that, under the law governing the obligations of purchasers at foreclosure sales in courts of equity, was sufficient to justify the appellant in his refusal to complete the purchase. †

The order should be reversed with ten dollars costs, besides disbursements on the appeal; and an order should be entered, relieving the purchaser from his bid, and directing the deposit made by him to be refunded by the referee.

DAVIS, P. J., and BARRETT, J., concurred.

Ordered accordingly.

*Fuller v. Van Geesen, 4 Hill, 171.

+ Morris v. Mowatt, 2 Paige, 586, 590; Veeder v. Fonda, 3 id., 94; Seaman v. Hicks, 8 id., 655.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

THE PEOPLE EX REL. THE TENTH NATIONAL BANK
OF THE CITY OF NEW YORK, RESPONDENTS, V. THE
BOARD OF APPORTIONMENT OF THE CITY AND
COUNTY OF NEW YORK, APPELLANT.

Chapter 583, Laws of 1871.

when court will compel the issue of the bonds therein provided for-Disputed claim - how decided.

A peremptory mandamus will not be granted requiring the board of apportionment of the city and county of New York to issue bonds, in pursuance of chapter 583, Laws of 1871, until it is established that a debt is owing to the relator, which may lawfully be paid out of the proceeds to arise upon the sale of such bonds.

A conceded claim, audited and allowed by the proper authorities, would be sufficient to entitle the relator to require that the fund for its payment should be raised, but a controverted demand can justify no proceeding of that kind. Where disputed matters of fact arise in proceedings by way of mandamus, issues of fact must be formed and tried by a jury, in all cases where the existence of a long account may not require the case to be referred.

APPEAL from an order directing a writ of peremptory mandamus, requiring the board of apportionment of the city and county of New York forthwith to meet, and, by concurrent vote, to authorize the issue of stock of the county of New York, pursuant to the provisions of chapter 583 of the Laws of 1871; and to take such action as will authorize the comptroller of the city of New York to pay to the Tenth National Bank of the city of New York the sum of $242,579.92, with interest thereon from the date of the several advances of the amounts composing said sum, being the claim of the bank for advances made to the commissioners of the new county court-house, prior to the 31st day of December in the year 1871.

John K. Porter and John H. Strahan, for the appellant. motion for a peremptory writ upon the moving and opposing affidavits, is in the nature of a demurrer. It concedes the facts to be as set forth in the opposing affidavits. (People ex rel. Bentley v. Com. of Highways, 6 Wend., 559, and 7 id., 474; Commer. Bank of Albany v. The Canal Com., 10 id., 31; People ex rel. Jennings, v. Seymour, 6 Cowen, 579; Ex parte Rogers, 7 id., 526;

FIRST DEPARTMENT, DECEMBER TERM, 1874.

Fish v. Weatherway, 2 John. Cases, 217; People ex rel. Wiswall v. Judges of Renss. Co., 3 How., 164.) The act is unconstitutional. It embraces more than one subject, viz., liabilities of and claims against the city of New York, and liabilities of and claims against the county of New York. (People ex rel. Morris v. Edmonds, 15 Barb., 529; People ex rel. Downing v. Stout, 23 id., 338; Baker v. Mayor, 9 Abb., 82; Halstead v. Mayor, 3 N. Y., 436; Gaskin v. Meek, 42 id., 186; People ex rel. Davies v. Com. of Taxes, 47 id., 501; Huber v. The People, 49 id., 132; In re Mayer, 50 id., 504; Sun Mutual Ins. Co. v. The Mayor, 8 id., 241; People ex rel. McConville v. Hills, 35 id., 449; People v. O'Brien, 38 id., 193.)

Henry E. Davies and Henry H. Anderson, for the respondents. Whether a peremptory mandamus will issue in the first instance, is a matter for the exercise of discretion on the part of the court. (Knox Co. v. Aspinwall, 24 How. (U. S), 376; People ex rel. Hall v. Supervisors, 32 N. Y., 473; Dwarris on Statutes, 712; Rex & Reg. v. Barlow, 2 Salkeld, 609; City of N. Y. v. Furze, 3 Hill, 612; Newburgh T. Co. v. Miller, 5 Johns. Ch., 113; Minor v. Mechanics' Bank, 1 Peters, 64.)

DANIELS, J.:

The object of the writ ordered to be issued, was to provide a fund for the payment of a claim made by the relator for moneys alleged to have been advanced to the commissioners of the new county court-house, during the continuance of a bank account, extending from the 29th day of April to and including the 2d day of September, in the year 1871.

In deciding the application for the writ, the learned justice by whom it was heard and disposed of, did not determine nor pass upon the question of the liability to pay the debt claimed to exist in favor of the relator. But the writ was directed to be issued for the purpose of creating a fund from which the debt could be lawfully paid, in case its existence should afterward be properly established. It was contingent in its nature, rendering the use of the fund dependent upon the circumstance of the relator's ability to show that a just debt was due to it which should be paid out of such fund.