SECOND DEPARTMENT, FEBRUARY TERM, 1875.

CHARLES H. MEAD AND ANOTHER, RESPONDENTS, v. THE WESTCHESTER FIRE INSURANCE COMPANY, APPEL

LANT.

Policy of Insurance — when action to reform, cannot be sustained.

One Foley applied to the agent of the defendant to insure "my house." In the year preceding the application, Foley owned and resided in a dwelling-house on the Cornwall road, but at the time of the application he resided in and owned a two and a half story frame building, occupied as a dwelling and paint shop. The policy issued covered the house on the Cornwall road, the agent testifying that he thought that that was the house Foley wished to insure. In an action brought to reform the contract, held, that the minds of the parties never met in an agreement, and that the action could not be maintained.

APPEAL from a judgment in favor of the plaintiffs, entered upon the report of a referee.

C. Frost, for the appellant.

Cassedy & Brown, for the respondents.

Opinion by BARNARD, P. J.

Present

BARNARD, P. J., TAPPEN and DONOHUE, JJ.

Judgment reversed and new trial granted at circuit, costs to abide the event.

HOWARD ALLISON, AS RECEIVER, ETC., RESPONDENT, v. WILLIAM E. WELLER, IMPLEADED, ETC., APPELLANT.

Action by receiver to set aside fraudulent conveyance — judgment debtor proper party to.

In an action brought by a receiver, appointed in supplementary proceedings, to set aside a conveyance, as fraudulent as against creditors, the judgment debtor is properly made a party defendant.*

* Vanderpoel v. Van Valkenburgh, 6 N. Y., 190; Bostwick v. Menck, 40 id., 383; Shaver v. Brainard, 29 Barb., 25.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

APPEAL from an order made at the Special Term, overruling a

demurrer to the complaint.

Hulse, Little & Finn, for the appellant.

D. D. McKoon, for the respondent.

Opinion by DONOHUE, J.

Present TAPPEN AND DONOHUE, JJ.

Order affirmed.

JOHN A. NICHOLS, RESPONDENT, V. THOMAS IREMONGER, GEORGE IREMONGER AND WILLIAM IREMONGER, IMPLEADED WITH CHARLES A. HILL AND OTHERS,

APPELLANTS.

Purchasers under execution sale- defense by, to prior incumbrances.

Purchasers under an execution sale may set up any defense to a lien prior to that under which the execution sale was had.

APPEAL from a judgment of foreclosure and sale, entered on the report of a referee in favor of the plaintiff.

The action was brought to foreclose a mortgage on premises sold on an execution sale, to the defendant, Iremonger, under a judg ment subsequent to such mortgage.

John H. Bergen and Philip Reilly, for the appellants.

H. W. Johnson, for the respondent.

Opinion by BARNARD, P. J.

Present

BARNARD, P. J., TAPPEN and DONOHUE, JJ.

Judgment reversed, and new trial granted at Special Term, costs to abide the event.

HUN-VOL. III. 77

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

GEORGE W. COLE AND OTHERS, APPELLANTS, v. MATTHIAS DENUE, RESPONDENT.

Evidence-Code, sec. 399.

Where in an action of ejectment, in which plaintiffs and defendant claim title from different owners, evidence is given on the part of the plaintiffs as to certain admissions made by a grantor of the defendant, the testimony of such grantor is properly admitted to rebut this evidence, even though it relates to transactions had with a deceased person, through whom the plaintiffs claim title.

APPEAL from an order made at the Special Term, denying a motion for a new trial made on a case and exceptions.

Judgment and order denying new trial affirmed, with costs.

LEWIS BEACH, RESPONDENT, v. JOHN EAGER, APPELLANT. Complaint for fraud- cause of action on contract cannot be proved under.

Under a complaint for fraud, it is not sufficient to prove a cause of action upon contract.*

APPEAL from a judgment in favor of plaintiff, entered at the County Court of Orange county.

The complaint alleged a cause of action arising from fraudulent representations as to the defendant's power to sell a mortgage, and as to the amount due thereon. The case went to the jury under a charge of the judge, that the plaintiff was entitled to recover if the employment was not within the scope of defend

* Degraw v. Elmore, 50 N. Y., 1.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

ant's agency. The jury were not required to find fraud on the part of the defendant.

Allerton & Mills, for the appellant.

John H. Bergen, for the respondent.

Opinion by BARNARD, P. J.

Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ.

Judgment reversed and a new trial granted, costs to abide event.

JOHN HIGGINS, RESPONDENT, v. THE NEWTOWN AND FLUSHING RAILROAD COMPANY, APPELLANT.

Implied assumpsit· when special contract is made measure of damages.

A party who has performed a special contract, may sue upon an implied assumpsit, and, upon the trial, give in evidence the contract-price as the measure of damages.*

APPEAL from a money judgment, entered on the verdict of a jury at the Queens County Circuit.

Elias J. Beach, for the appellant.

James W. Covert, for the respondent.

Opinion by BARNARD, P. J.

Present BARNARD, P. J., and DONOHUE, J:

Judgment affirmed, with costs.

*Farron v. Sherwood, 17 N. Y., 227; Fells v. Vestvali, 39 id., 152.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

GEORGE N. COX, RESPONDENT, v. THERON N. WELLER, APPELLANT.

Statute of frauds.

A verbal agreement between W. and F., whereby W., for a valuable consideration, agrees to pay a claim due from F. to C., is not within the statute of frauds, and may be enforced by C.*

APPEAL from a judgment entered in favor of the plaintiff, at the Orange County Circuit.

Hulse, Little & Finn, for the appellant.

D. D. McKoon, for the respondent.

Opinion by BARNARD, P. J.

Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ.

Judgment affirmed, with costs.

JAMES H. RAYMOND, RESPONDENT, v. CAROLINE H. HANFORD, APPELLANT.

Implied assumpsit - · measure of damages.

An executed contract may be sued upon, on an implied assumpsit, and the contract-price will be the measure of damages.†

APPEAL from a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial.

The action was brought upon a quantum meruit, for work and labor done for defendant.

T. G. Swartwout, for the appellant.

L. T. Yale, for the respondent.

Opinion by BARNARD, P. J.

*Lawrence v. Fox, 20 N. Y., 268.

Farron v. Sherwood, 17 N. Y., 227; 39 id., 152.