THIRD DEPARTMENT, DECEMBER TERM, 1874. done. The defendant could not insist upon his full performance as a condition precedent to recovery, for that would enable him to take advantage of his own wrong. The fraud of defendant does not constitute the ground of recovery, but does excuse the plaintiff's further performance. If the contract had been fully executed by the plaintiff before discovery of the fraud, the fraud would have been immaterial, unless he could show damages resulting from it. But while a contract remains executory, in whole or in part, the discovery of the fraud gives the innocent party the right to rescind it. One may not recover for the fraud which has not harmed him, but when he detects it he may avoid further risk from it. That he has not been hurt in the past, imposes no obligation for the future. It is obvious that every man has the right to judge for himself, upon what risk or credit he will part with his time, his labor, or his property; and if he is induced to agree to part with them upon a material misrepresentation as to the character of that risk or credit, no court of equity will decree specific performance, and no court of law should punish for non-performance. But such punishment was administered to this plaintiff. The court charged the jury, "if the defendant tells the truth in regard to his property, then it affirmatively appears that at that time he was solvent, and that no injury arose to the plaintiff, although the defendant did not own the farm as he stated, but had personal property enough to pay the debt." The plaintiff duly excepted to this and other portions of the charge, and to refusals to charge, in which the principle we have discussed is involved. The judgment should be reversed and a new trial ordered, costs to abide the event. Present-BOCKES, P. J., COUNTRYMAN and LANDON, JJ. BOCKES, P. J., dissented. Judgment reversed and new trial granted, costs to abide the event. THIRD DEPARTMENT, DECEMBER TERM, 1874. THE PEOPLE EX REL. POLLY MURPHY, v. S. C. LOCKWOOD, JUSTICE OF THE PEACE. Summary proceedings — certiorari to review — what brought up by Evidence. A certiorari, to review summary proceedings, had before a justice of the peace to remove a tenant, brings up any question of law arising either in the proceeding or upon the trial, and enough of the evidence to enable the court to determine whether the relation of landlord and tenant existed between the parties. Upon the trial before the justice, evidence was given in behalf of the plaintiff, tending to show that the relator entered into possession of the premises by the permission of the plaintiff, and upon the agreement that she would go out when requested. This was denied by the relator, who claimed to have entered in the right of her children, as the heirs of her deceased husband; upon the trial she offered to prove that the plaintiff gave her the premises in consideration of services rendered by her to him, which evidence was excluded. Held, that its exclusion was error. CERTIORARI to review summary proceedings had before the respondent to recover possession of certain real estate, alleged to be occupied by the relator as the tenant of one Timothy Murphy. Geo. Adee, for the relator. W. Gleason, for the defendant. LANDON, J.: This is a statutory writ of certiorari, to review summary proceedings had before a justice of the peace, to remove the relator, an alleged tenant of one Timothy Murphy, the plaintiff below. This statutory writ brings up for review any question of law arising either in the proceedings or upon the trial, and enough of the evidence to enable this court to determine whether the relation of landlord and tenant existed between the parties.* These summary proceedings can only be had where the conventional relation of landlord and tenant, by agreement, exists between the parties. † In this case the relator, by her answer before the justice, denied that she was the tenant of the plaintiff, and alleged that she was the owner of the premises. The main question litigated before the *People v. Hamilton, 39 N. Y., 107. + Benjamin v. Benjamin, 1 Seld., 383; People v. Simpson, 28 N. Y., 55 THIRD DEPARTMENT, DECEMBER TERM, 1874. justice, was, whether such a relation existed. Timothy Murphy resides in California, and has since 1854. His agent, David Taylor, testified that, in 1859, the relator moved into the house; "she came to my house and asked me to let her come back into the house she now occupies. I told her I did not know as I had any right to let her in, as I had had trouble with her to get her out before. * * * I told her if she would leave at any time I wanted her to, without any trouble, I would let her in until I heard from Timothy Murphy. She said she would. She went in, and I wrote to Timothy Murphy and got an answer which I communicated to her." The answer was, "You can let Polly stay on the place till I come back if you are a mind to." Timothy has not yet come back. The relator denied that she went into possession of the premises under the circumstances, above detailed, but in the right of her children as the heirs of Charles Murphy her deceased husband. The plaintiff below, for the purpose of showing title in himself, gave in evidence a deed from Abram Becker to himself of the premises in question, of a date prior to the alleged hiring. This deed recited that Charles Murphy was in possession under a contract of purchase, and that the premises were conveyed to the defendant subject to that contract. Now if the contract testified to by David Taylor should be accepted as the absolute truth, the relator could not avail herself of the recitals in the deed. Having entered into possession under the plaintiff, she must first surrender that possession before she can dispute his title.* But in support of her denial that she had entered into possession in the manner claimed, she had the right to invoke the aid of the recitals in the deed, and to fortify her denial by any other material evidence. She offered to prove that the plaintiff gave her the premises in consideration of services rendered by her for him in bringing up his children. This evidence tended to show that her possession was not of the character alleged by the plaintiff's agent. She had the right to acquire any outstanding title in support of her own. And even if she had made the agreement sworn to by the agent, she had the right subsequently to make and substitute another agreement with the plaintiff for it. We think the justice erred in excluding the evidence. The justice also erred in receiving * Jackson v. Spear, 7 Wend., 401; Kenada v. Gardner, 3 Barb., 589; Hill v. Hill, 4 id., 419. HUN-VOL. III. 39 THIRD DEPARTMENT, DECEMBER TERM, 1874. in evidence, against the relator's objection, a letter written by the plaintiff to his agent shortly before this proceeding was commenced. This letter was simply the plaintiff's declaration in his favor. The fact that the agent of the plaintiff read it to the relator to whom it was not addressed, made it none the less so. The relator made no remark when the letter was read to her, nor was she called upon to make any. The judgment of the justice should be reversed, but as it is not clear to us that the relator is entitled to the possession of the premises, restitution is not awarded nor costs given, but the relator is left to her action under the statute, or such other remedy as she may be advised to pursue. Present-BOCKES, P. J., COUNTRYMAN and LANDON, JJ. Proceedings and judgment reversed, without costs. 3 306 f46ap390 3h 306 59ad221 THE PEOPLE OF THE STATE OF NEW YORK EX REL. Board of excise - power to revoke licenses - Under section 4 of chapter 549, Laws of 1873, authorizing the board of excise to revoke the license granted to any person if they should become satisfied that he has violated any of the provision of the act, the licensee is not entitled to a trial by jury. Upon the hearing before the board, the witnesses on the part of the complainants were examined under oath, against the objection of the relator, who did not, however, ask that any person be examined in his behalf, either with or without oath. Held, that, even if the board had no power to administer oaths, still, as the information was before them, and satisfied them that the relator had violated the law, it was their duty to revoke his license. Semble that the board had power to administer oaths under the provision authorizing them to examine witnesses under oath. CERTIORARI to the board of commissioners of excise of the village of Delhi, Delaware county, to bring up the proceedings had in May, 1874, to cancel, vacate and annul the license of the relator THIRD DEPARTMENT, DECEMBER TERM, 1874. taken by him 28th October, 1873, authorizing him to sell ale or beer, in pursuance of section 4, of chapter 856, of Laws of 1869. The relator received a license authorizing him to sell ale or beer after the passage of chapter 549, of the Laws of 1873, amending the Laws of 1857. It appears by the return, that on the 4th of May, 1874, a complaint signed by four residents of the said village, was presented to the board of commissioners of excise and filed. The board immediately issued a summons, requiring Beller to show cause why his license should not be revoked, canceled and annulled, in accordance with section 8, of chapter 549 of Laws of 1873. The summons being personally served on Beller, he, on the same day, appeared before the board and objected to the complaint, on the ground that it was indefinite and uncertain; that it did not point out or specify, with sufficient accuracy and certainty, the date and manner of violation of the license, to enable the party complained of, to properly and safely answer the complaint. These objections, after hearing counsel, were by the board then and there overruled. The defendant excepted, and then denied the complaint, and set up his license, issued by the board, authorizing him to sell ale or beer, and that he was protected by the license. The license was then presented to the board by the relator, and was examined and read. By consent of parties, the further hearing was adjourned to May 18, 1874, at nine o'clock A. M., and subpoenas issued to each party. The board met, pursuant to adjournment, on the 18th of May, 1874. After several objections to the right of the board to proceed were heard and overruled, Alexander Shaw was examined for complainants, and Beller "objected to the board administering oaths to complainants' witnesses." The objection was overruled, and the chairman administered oaths to all witnesses. Several witnesses were examined, and they stated that the relator had sold strong and spirituous liquors at his place of business, on divers days between the date of the license and the day of the complaint. The relator did not, upon such inquiry, give any evidence, nor deny the evidence and statements made by the witnesses inquired of by the complainants before said board. The board, after the close of the arguments of the respective counsel of the board and the relator, determined to revoke cancel and annul the said license. The board adjourned to the nineteenth of May, at which time it re-assembled and made an |