On the whole, we think the evidence too conflicting to justify an interference with the verdict of the jury upon this disputed question of fact, as there is some evidence to support their finding, unless some well-settled principle of law was violated in the admission or rejection of evidence. It is insisted on the part of the appellant that it was error to receive in evidence, under the defendant's objection, the mortgage given by Richard Burke to Benjamin S. French at the time of the conveyance by French to Burke. The mortgage was given to secure the purchase money of the land described in and conveyed by the deed, and was so expressed on the face of the instrument, and bore even date with the same. The deed gave the names of the adjoining owners to the land conveyed, but did not give the extent or distance on Grove street. The mortgage gave the same abutting owners, and therefore necessarily described the same premises, and contained the additional description of the extent of the line on Grove street. The mortgage was an instrument executed at the same time as the deed, and between the same parties, and under certain circumstances would, as between the parties to both instruments, operate as a defence of the grantee's title under the deed. The question raised here, on the admissibility of this mortgage as evidence, is unlike that in Armstrong v. Du Bois, 90 N. Y. 95, referred to by the learned counsel for the defendant. In that case it was sought to extend the provisions of a deed, explicit in its terms, which expressly excluded the lands described in the lease which was sought to be read as a part of the deed; and the court says: "The language of the deed is clear and needs no interpretation. The deed is susceptible of no construction which will carry the premises in controversy,"—and, for these and other reasons not existing in the case at bar, the lease in that case was held inadequate and inadmissible. In this case the identity of the land covered by the deed and mortgage admits of no doubt. In this case the court says: "The lease is susceptible of a reasonable construction which will exclude the premises in controversy, and the deed is not susceptible of a construction which will include them." In Craig v. Wells, 11 N. Y. 315, also relied upon by the defendant on this point, the court says: "The deed, therefore, from Moses Phelps to his son William, upon which the questions in this case arise, is to be construed by itself, although the circumstances under which it was executed, and, among them, the simultaneous execution of the other deed and bonds, may no doubt be resorted to for the purpose of aiding in its construction, so far as there may seem to be anything equivocal in its provisions.'

The only thing equivocal in the deed in the case at bar is its failure to give the distance on Grove street, and the mortgage was offered to remove the doubt on that point. In Dusenbury v. Hulbert, 59 N. Y. 544, it was expressly held that a deed conveying the title to land, and a mortgage given for the purchase money at the same time, must be taken as one instrument, and read together as one act, and the court says: "The deed and Bowen mortgage executed at the same time are to be construed together as one instrument. They constitute an indorsable act." Again, it is urged by the plaintiffs that the mortgage was competent evidence as a declaration of Burke, the mortgagor in possession, and through whom the plaintiffs claim, as characterizing his title and actual occupancy under it. The declarations of the owner of real property in possession are competent as characterizing the extent of the possession. Abeel v. Van Gelder, 36 N. Y. 516.

It was no error, therefore, under the circumstances of this case, to allow the mortgage in evidence. "The rule is that declarations of this character are admissible if made while the party so declaring is in possession of the premises in dispute," and it is not essential that they should have been made on the land. Smith v. McNamara, 4 Lans. 169; Swettenham v. Leary, 18 Hun, 286. Nor do we see any legal objection to the evidence of conversation between Sarah J. Burke and plaintiffs with Jackson, the defendant. It is quite true that such conversation could not be substituted

for deeds in proof of title to land, nor could they establish title in one party or the other, but, as they related to the location of the line in dispute between them, while they were respectively in the possession of the lands, we think them competent as bearing, slightly perhaps, upon the location of the line. On the whole case I do not see that any substantial error was committed in the admission or rejection of evidence, and the jury having disposed of the disputed question of fact, there is no ground for interference by this court. It follows that I cannot concur in the opinion of my brethren for a reversal in this case.

GORDON v. Fox.

(Supreme Court, Special Term, New York County. January 23, 1890.) ARREST IN CIVIL ACTIONS-VACATING Order.

In an action for specific performance of a contract to assign to plaintiff an interest in certain patents, an order of arrest was granted on an affidavit which alleged that defendant was about to leave the state, and that the patents were worth $250,000. No facts were stated showing the value of the patents, nor was there any evidence thereof. Held that, there being nothing on which to fix bail, the order of arrest would be vacated.

Action by Selden S. Gordon against Frank A. Fox for specific performance of a contract by which defendant agreed to assign to plaintiff an interest in certain patents, in consideration of two dollars paid to said Fox by said Gordon. Plaintiff procured an order of arrest on an affidavit that defendant was about to leave the state, and that the patents were worth $250,000. Defendant now moves to vacate the order of arrest.

David B. Ogden and Mason Fay Prosser, for plaintiff. James L. Bennett, for defendant.

BARRETT, J. The rule stated in Cowdin v. Cram, 3 Edw. Ch. 231, has not been affected by section 550 of the Code of Civil Procedure. That rule confines the writ of ne exeat in actions for specific performance to cases against the vendee. The principle is that the writ is in the nature of equitable bail, readily fixed where the purchase money is specified, but difficult of ascertainment when the action is against the vendor. Here the complaint shows nothing as to the pecuniary element. The affidavit states that the interest sought to be recovered is worth $250,000, but no facts are stated justifying the assertion. In view of the nature of the thing agreed to be assigned, the statement is necessarily a mere assertion; in fact, an opinion. There was nothing upon which to fix bail at $5,000, or any other sum, and the order should therefore be discharged.

DOVALE v. ACKERMAN et al.

(Supreme Court, Special Term, New York County. March 3, 1890.) COSTS-TAXATION-ALLOWANCE OF AMENDMENT.

Plaintiff was required to pay the accrued costs as a condition of being allowed to amend his complaint. Held, that plaintiff, having afterwards obtained a judgment, was entitled to tax in his bill of costs the items so paid.

At chambers.

Action by Ricot J. Dovale against Bernard L. Ackerman, Sr., and Bernard L. Ackerman, Jr. Plaintiff asked leave to amend his complaint, which was allowed on condition that plaintiff pay the costs accrued from the commencement of the action to the time the amendment was made. At the trial plaintiff obtained a judgment, and in taxing his costs the clerk disallowed the amount paid to defendant under the condition imposed, and plaintiff moves for a retaxation.

James M. Lyddy, for plaintiff. Coudert Bros., for defendants.

́O'BRIEN, J. If there was no dispute as to items of costs, the plaintiff, having succeeded in the action, would have been entitled to costs as of course. As a condition of being allowed to amend, plaintiff paid the term fees, etc., to defendants. Is it not clear that, if not allowed to tax these now, plaintiff has paid double costs for the amendment, viz., those actually paid to defendants, and those which the clerk has decided cannot be taxed against defendants because heretofore paid to the latter? The motion to retax granted, and the exceptions on appeal from the clerk's taxation allowed.

GILPIN v. DALY, (two cases.)

(Supreme Court, Special Term, New York County. March 1, 1890.)

GAMING-ACTION TO RECOVER MONEY LOST-PLEADING.

In an action to recover money of plaintiff's assignor, lost at gaming by its treas urer, an allegation that the money was lost in gambling-houses of which defendants were proprietors is not immaterial, and will not be stricken out, as it shows the relation of the parties at the time the money was lost.

At chambers. Two actions by Charles Gilpin, Jr., as assignee of the Glamorgan Iron Company,-one against John Daly and others, and the other against Appleby and others, proprietors of gambling-houses in the city of New York, to recover money of plaintiff's assignor which had been lost by one Charles B. Wigton, its treasurer, at defendants' houses. Defendants move to strike out all the allegations of the complaint in regard to gambling-houses, and all other allegations except such as are necessary in an action for money had and received, and that plaintiff furnish a bill of particulars.

Strong & Cadwalader, for plaintiff. John Graham, for defendants.

PATTERSON, J. That an action for money had and received will lie against a person who has won by gaming from an employe the money of his employer was decided in Causidere v. Beers, 1 Abb. Dec. 333; and it is there intimated that in such a case the money might have been recovered at common law in a declaration under the common counts. But in an action under the Code facts are required to be set forth, and one of the facts stated in these complaints is that the money belonging to the plaintiff's assignor was lost in a gambling-house belonging to the defendants. That cannot be considered as an entirely immaterial fact, because it is a circumstance which, in an action for money had and received, would go to show the relation and situation of the parties at the time the money was lost; so that, even upon the contention of the learned counsel for the defendants in his able argument that the complaint should be trimmed down to one for money had and received, the matter objected to should not be stricken out under the provisions of the Code which he has invoked for that purpose. I do not wish to express any opinion as to whether or not this suit can be maintained as one in equity. That is a question which must arise in another way. There is a good cause of action on the facts appearing, and the part now objected to is not irrelevant to that cause of action, whether the remedy be legal or equitable. As to that part of the motion respecting a bill of particulars, there is nothing to show that the defendants have not as full knowledge of the circumstances and details of the transactions respecting the loss of the moneys as the plaintiff has, and therefore that branch of the motion must be denied. It further appears that the plaintiff has not knowledge of the facts. Concerning the division of the complaint into as many causes of action as there were different winnings of the moneys of the plaintiff's assignor lost at play by the servant, the decision of that matter must depend altogether upon the right of the plaintiff to maintain this suit as one in equity,-a question which, in my judgment, does not, and cannot properly arise upon this motion. The motion in all three of its aspects is denied, with $10 costs to abide the event.

HAEBLER v. MEYERS.

(Supreme Court, Special Term, New York County. February 17, 1890.) ATTACHMENT-REINSTATEMENT-RESTITUTION BY JUNIOR LIEN CREDITOR. Where an attachment is vacated on the motion of one who has a junior lien on the attached property, and the sheriff thus pays to such junior lien creditor the proceeds of the attached property in satisfaction of his lien, the junior lien creditor cannot be compelled to make restitution to the attachment creditor of the amount so received on reversal of the order vacating the attachment.

Action by Theodore Haebler against Elizah Meyers and J. Harby Moses. Defendants demur on the ground that the complaint does not state facts sufficient to constitute a cause of action. For former litigation, see 4 N. Y. Supp. 873; 9 N. Y. Supp. 725; 22 N. E. Rep. 167.

Marshall P. Stafford, for plaintiff.

Billings & Cardozo, for defendant.

VAN BRUNT, P. J. The complaint in this action alleges that in April, 1888, the plaintiffs issued to the sheriff of New York an attachment in an action in which these plaintiffs were plaintiffs and John G. Bernharth and lienors were defendants. That the sheriff levied said attachment, and by reason of such levy received the sum of $900. That in November, 1888, upon motion of the defendants as subsequent lienors, an order was entered vacating the plaintiffs' attachment. That thereupon the sheriff paid over to these defendants as subsequent lienors said $900 which he had collected under the attachment issued to him by the plaintiffs. In the same month the plaintiffs obtained judgment in the action in which the attachment was issued for $1,257.91, and issued an execution thereon, which was returned unsatisfied. In October, 1889, the court of appeals reversed the order vacating the attachment, and denied the motion made by the defendants to vacate the attachment. Haebler v. Bernharth, 115 N. Y. 459, 22 N. E. Rep. 167. That restitution of the said $900 has been demanded and refused, and judgment of restitution is asked for. To this complaint the defendants demur upon the ground that the complaint does not state a cause of action against them in favor of the plaintiffs. I fail to see how this action can be maintained. The defendants have received nothing from the plaintiffs which they are bound to restore to them. The inference to be drawn from the allegations of the complaint is that the sheriff has realized out of the property of John G. Bernharth and others, upon attachments against them, the sum of $900, and that he has paid such sum over to the defendants in this action upon an execution issued to said sheriff against the property of said Bernharth and others in their favor. It is true that, but for the vacation of their attachment, the plaintiffs in this action would have been entitled to receive that money, but, that attachment having been vacated, the sheriff was bound to pay to the party next entitled, and this he did, and the lien of the plaintiffs seems to have been lost. It does not seem to be very material upon whose motion the attachment was vacated. The same result would have followed had the motion to vacate been made by the defendants in the attachment. In all the cases cited where restitution has been ordered or decreed the party whose money or property had been taken was the moving party, not a party who had lost a lien because of an erroneous decision of the court; and that is all that the plaintiffs had by reason of their attachment. The property was not theirs, but belonged to the defendants in the attachment until it was devoted to the payment of the defendants' execution. I do not see how the defendants are under any liability to the plaintiffs in an action like the present one because the sheriff has paid them their execution out of property upon which they formerly had a lien of which they were unjustly deprived. The demurrer must be sustained, with costs.

OREGON PAC. R. Co. v. FORREST et al.

(Supreme Court, General Term, First Department. May 23, 1890.)

EQUITY-LACHES.

Plaintiff railroad company made a contract with G., whereby the latter agreed to purchase a quantity of rails and their fastenings, and to sell the same to plaintiff on te rms therein stated, and plaintiff agreed on its part to deposit with G., as a guaranty for its performance of the contract, 8,000 of its first mortgage bonds for $1,000 each, of which G. was to retain 100 for his own use, and hold the remainder until the ties, etc., had been paid for. G. having neglected to proceed with the contract, plaintiff authorized its president to negotiate for the cancellation of the agreement and to close the transaction. That officer accordingly negotiated with G., and the contract was canceled, 100 bonds being retained by G. as consideration for the cancellation, a written memorandum to that effect being signed by the parties. Interest on these bonds was afterwards paid by plaintiff for six years, when suit was instituted in its behalf to recover the bonds on the ground that its consent to their retention by G. was obtained by duress. In the mean time, G. and his witnesses had died. Held, that plaintiff's delay in seeking to be relieved from the alleged duress was fatal to the action.

Appeal from circuit court, New York county.

Action by the Oregon Pacific Railroad Company against George J. Forrest and others, executors under the will of Cornelius K. Garrison, deceased. From a judgment dismissing the complaint, plaintiff appeals.

Argued before VAN BRUNT, P. J., and BARTLETT and BARRETT, JJ.
Joseph H. Choate, for appellant. Horace Russell, for respondents.

VAN BRUNT, P. J. In June, 1881, the plaintiff railroad was in process of construction, and on the 13th of that month the plaintiff made with the defendants' testator, Cornelius K. Garrison, a contract whereby, among other things, the said Garrison agreed to purchase 5,000 tons of English steel rails, deliverable in San Francisco at as early a date as reasonably practicable, and to sell to the plaintiff the rails so bought, upon arrival of each shipment at San Francisco, upon receiving in cash the actual cost to him of said rails, and the further sum of $100,000 in first mortgage bonds of said company. Garrison further agreed to purchase the fastenings for said rails, and to deliver the same at San Francisco, at the same time, which were to be paid by the company in the same manner. The company agreed to deposit with Garrison, as a guaranty for the performance of the contract on their part, 3,000 of the first mortgage bonds of the company for $1,000 each, of which Garrison was to retain 100 as above stated, and to hold the remaining 2,900 until the company had taken and paid for the rails and fastenings including interest and all proper charges. The contract also contained a provision that the company might withdraw any part of said bonds on paying to said Garrison 60 per cent. of their par value. The company further agreed to give to said Garrison the same bonds in full-paid stock of the company upon the 100 bonds already mentioned, that they would be entitled to prorate with the most favored purchaser of any of said company's bonds. Garrison further agreed to loan to the company an amount equal to the difference between the cost to him of said rails and fastenings and $200,000; the bonds deposited with him as above being held as security for such loan. The company further agreed to purchase from Garrison the 100 bonds already mentioned, together with the pro rata of stock, and pay him therefor $100,000 at any time he might elect to sell the same to them. Under the fifth article of this agreement the plaintiff deposited with Garrison 3,000 bonds. On the 21st of July, 1881, the company received back 400 of said bonds.

It was claimed by the plaintiffs that between the 13th of June and the 13th of August, 1881, Garrison took no steps to purchase the rails or other supplies referred to in said agreement, though the plaintiff's president nad requested that the same should be furnished. On the 13th of August, 1881, at