
    Cornwell v. Parke et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    1. Slander of Title—What Constitutes.
    A receiver appointed in a partition suit leased the land for a term of years. Afterwards the court abridged the lease, so as to end it shortly after the time set for partition sale. After the sale, this order was affirmed on appeal. At the sale the lessees, who were then in possession, read a notice claiming the land for the full period of their lease. Held, that such notice, being the lessees’ only means of protecting their claim against an innocent purchaser, was not slander of title.
    2. Costs—Attorney’s Pees—Extra Allowance.
    In an action to recover §50,000 for slander of title, where the complaint is dismissed upon a trial lasting only one day, an extra allowance of §3,000 for defendants’ counsel fees is excessive.
    S. Same—Estimate of Amount.
    In estimating the proper amount of such an extra allowance, the general term cannot consider any matter not shown by the record.
    Appeal from circuit court, New York county.
    Action by Jacob W. Cornwell against William A. Parke, Isaac A. Singer, and John Dayton, for slander of title. On the trial the court dismissed plaintiff’s complaint, and gave judgment against him for costs, including an extra allowance of $2,000 for fees for defendants’ counsel. The complaint demanded judgment for $50,000. The trial occupied only one day. Plaintiff appeals.
    
      Argued before Van Brunt, P. J., and Brady and Bartlett, JJ.
    
      Flamen B. Candler, for appellant. Edward M. Shepard, for respondents.
   Van Brunt, P. J.

This is an action to recover damages for slander of title. The facts seem to be as follows: In April, 1882, Samuel Weeks and Samuel Weeks, Jr., claiming to be owners of an interest in certain real estate in the city of New York, brought an action for a partition and sale of the property. In February, 1883, during the pendency of the action, a receiver of the property was appointed by an order whereby the receiver was empowered to lease the property for a term not extending beyond the 1st of May, 1886. After this order had been made, and the receiver had executed leases which would by their terms expire in 1886, the litigation not being terminated, he applied ex parte for permission to rent the property. An order was signed in October, 1885, permitting the receiver to rent the property for the term of three years, beginning May 1, 1886, and ending May 1, 1889. The defendants herein received leases of certain of the property under this order, which were to expire on the 1st day of May, 1889. In the following spring, on the 19th of March, 1886, a judgment of sale was obtained in a partition action. The execution of the judgment, however, was delayed until the spring of 1887 by various appeals, when the sale of the premises was finally advertised to take place on the 13th of April, 1887. In March, 1887, the plaintiff in this action, who was a defendant in the partition proceeding, on notice to the parties, and notice to the defendants herein, made a motion to have the order of October 19, 1885, granting the receiver permission to lease, vacated, and. the leases given under it abridged. This motion was heard, the court deciding to abridge the leases so that they should be invalid beyond the 1st of May, 1887, upon condition that the lessees should be protected from the damage caused by the abridgment of their leases; and on the 15th of April, shortly before the commencement of the sale, an order was signed modifying the order of October 19, 1885, as above stated. At the sale notices were read on behalf of the three defendants, as follows: “Notice is hereby given that the undersigned now occupies and is in possession of and resides in the house * * * under a lease made to him by John E. Ward, a receiver appointed by the supreme court of the state of New York; * * * that the said lease bears date the 24th of February, 1886, and is for a term of three years, commencing on the 1st day of May, 1886; * * * that the original of the said lease is in the possession of the undersigned, and a duplicate thereof in the possession of the said receiver, John E. Ward; that the said receiver was appointed by this court by order made in the said action, bearing date 6th February, 1883; and that the said receiver made the said lease pursuant to instructions given by the said court by order bearing date 19th October, 1885. And I further give notice that, as I am advised and verily believe, I am, so long as I comply with the terms of the said lease to me. entitled to the possession of the said house and premises until the expiration of the term specified in the lease, namely, the 1st day of May, 1889. The parties giving the foregoing notice beg further to state that an order was made to-day by Mr. Justice Patterson purporting to limit the terms of the leases to May, 1887, and to provide a fund out of which tile damages of the lessees might be met. The parties giving the foregoing notice are advised by their counsel, and they believe, and to the utmost that is lawful they will act upon their belief, that nothing in such order can in any way operate' to limit the terms of their leases, or deprive them of any rights thereunder. Stickney & Shepard.” It is claimed that the reading of these notices seriously affected the sale, and evidence was offered tending to show that parties had been deterred from bidding upon the property because of the notice given, and this action was brought to recover the damages sustained by the plaintiff as one of the part owners of the property by reason of this action of the defendants. It is not claimed that any statement contained in these notices was in any respect false or untrue. Upon this state of the evidence the court dismissed the complaint, and the question as to this ruling is the one now before the court.

We have examined with considerable care the numerous authorities cited by the counsel for the appellant to sustain his exception to the ruling dismissing the complaint, and we have not been able to find but that in every one of them there was some false statement, or something upon which a finding of malice might be founded. In the case at bar there is no pretense that any false statement was made, or that any attempt was indulged in to create a false impression. On the contrary, as far as the evidence shows, the defendants were doing nothing more than to protect what they believed to be their rights. They were in an exceedingly peculiar position. They had contracted with the court for a lease of these premises for three years, and the court of appeals have held that the court had the power to authorize the receiver to make these leases. The defendants having these leases, and being in possession of the premises thereunder, were by the order of April 13,1887, deprived of two years of the term which had been granted them by the order of the court. The right to the remainder of this term they desired to protect. If they had stood by and allowed these premises to be sold upon the assumption that the order of the court had terminated'these leases, it may be questionable whether they could have thereafter been heard to say that they did not acquiesce in the order; because it is a maxim of the law that where a man stands by and sees another assert title to a piece of property, and holds his peace, that he will not be allowed to assert a title in himself as against an innocent and Iona fide purchaser. But it may be said that the defendants were in possession of the property, and consequently that gave notice to the world of their claim. But their possession was entirely consistent with the termination of these leases in May, 1887, and did not imply any claim on their part beyond that which had been conceded by the order of April, 1887. Their possession, therefore, was no notice of the claim that notwithstanding the order of April, 1887, they intended to insist upon their rights. They had no reason to anticipate the result of the appeal from that order to the court of appeals, viz., that it would be held that the leases were validly made, but that because the contract was with the court it might be invalidated by the court, whereas, if the contract had been between two individuals, there would not have been any power which could have impaired its obligation or its terms. We fail to see any basis whatever for the allegation of malice, or any facts from which it was possible for a jury to have inferred malice. As has already been stated in all the authorities cited, there is not a single one in which the existence of malice does not seem to be derived from some falsity connected with the assertion. We think that a complete answer to the whole question is derived from the fact that if these parties, being present, had allowed this property to be sold upon the assertion that they had no title or interest therein, and had remained silent, no matter what rights they might have had, they never thereafter could have asserted them. It cannot be when such was the condition of affairs that they were bound to hold their peace, and be forever precluded from further testing the adjudication which has been made against them, or run the risk of being called upon to pay damages in case they guessed wrong in respect to a question of law about which they were much nearer right than the parties who made the motion for the modification of the order of 1885. There was no error, therefore, in the dismissal of the complaint, and the refusal to submit any question to the jury.

The allowance granted, however, seems to have been excessive. The learned counsel for the respondents presents many considerations which he states were before the court, and which did not form part of the record. The difflculty is that this court is compelled to adjudicate upon the question brought up by appeal upon the record, and not upon what has occurred outside of the record. There does not appear in the record any sufficient reason for so large an allowance as was granted. We think, therefore, that the allowance should be reduced to $500, and that the order granting the allowance should be modified in this respect. The judgment appealed from should therefore be reduced to $608.34, and as so reduced affirmed, without costs. All concur. 
      
       See Weeks v. Cornwell, 13 N. E. Rep. 96.
     