
    MILES v. TITUS.
    
      N. Y. Superior Court; Special Term,
    March, 1877.
    Appeal.—Pleading.—Referee.
    Where a plaintiff in an action is not estopped by the result of a previous action from insisting upon his rights, an action will not lie to reform the pleading therein.
    The proper remedy of a party injured by an order confirming a referee’s report, even when containing a reservation of the party’s right to bring an action, is to appeal from the order.
    Where the only wrong complained of in a complaint was that schedules referred to in the description of certain leases were ambiguous on their face, or had been made so by an order of the court, or incorrectly described the rights intended to be conveyed ;—Held, on demurrer, that the complaint did not state facts sufficient to constitute a cause of action, because it did not allege in what state the schedules were when the leases were made; whether they conformed to the intentions of the parties, and if they did, what were the facts which called for changing them against the intentions of the parties, or if not, how the schedules should be.
    Demurrer to complaint.
    
      This action was brought by William A. Miles and Charles H. Bailey, as executors of the last will, &c., of William B. Miles, against Eliza A. Titus, to have a former judgment of this court, in a suit of the said Eliza A. Titus, the plaintiffs, and others, against Anna J. D. Burr, and others, opened, and that the plaintiffs and defendant herein have leave in some way to raise an issue as between themselves, as to the extent of their respective ownership of two certain lots of land known as 61 and 63 Chrystie street, in the city of New York, besides other relief, and also for an injunction.
    The complaint stated, that on or about January 26, 1847, Polly Buchanan and Ann Johnson, being the owners in fee of four lots of land between the Bowery and Chrystie street, “containing together in breadth on the Bowery and Chrystie street, fifty feet, in length on the northerly side, two hundred and nine feet, and in length on the southerly side, two hundred and twelve feet, with the appurtenances,” leased the same to Mary Luff for the term of twenty-one years, from April 30,1847, at the yearly rent of $900 and taxes and assessments. That this lease contained a covenant that the lessors would purchase the buildings which were erected during the term, according to an appraisement to be made, or would renew the lease at a rent to be determined by the rent of lots of land in the neighborhood. That this lease was duly recorded.
    That afterwards on the same day, the said Mary Luff leased to George H. Titus for twenty-one years from May 1,1847, at a yearly rent of $400 together with taxes and assessments, two of the aforesaid lots, being bounded and containing easterly in front by Chrystie street, fifty feet, westerly in the rear by the other two aforesaid lots, fifty feet, northerly and southerly by other land, one hundred feet, “with the appurtenances, and with privilege of reserving an alley of three feet in width, in the clear, to extend from Chrystie street to rear of lot fronting on the Bowery, on the northerly side of the lots.” That the last mentioned lease contained the same covenants as to appraisement or renewal as the first one referred to. That this lease was in equity and effect a transfer and assignment by Mary Luff of so much of said lease to her and the covenants therein as affected the part leased thereby to George H. Titus. That this second lease was duly recorded.
    That on or about February 1, 1849, the said George H. Titus leased to William B. Miles and Abial Miles for nineteen years from April 30, 1849, at the yearly rent of $700 and taxes and assessments, a part of the premises last above described, being a house and premises known as No. 61 Chrystie street,. and also the buildings and premises across the rear of lots Nos. 61 and 63 Chrystie street, and the land on which the same stood, “saving and reserving to the said party of the first part, a strip of land three feet in width from off the most northerly part of the lot No. 63 hereby demised, and extending to the whole depth of the said lots as far as the rear of the lots fronting the Bowery, also the right to cut away any building then remaining on the said premises hereby reserved at any time. That, in lieu of the covenant for valuation of buildings and of renewal, there was in the latter lease, a provision that the lessor would allow, at the expiration of the lease, the value, as appraised by same appraisers as provided for in other leases, of a new brick building, in case the lessee should erect one. That this lease was duly recorded.
    That in 1849 William B. Miles and Abial Miles erected a new brick building, which was standing at the termination of the lease and is yet. That the building extended entirely across the rear of the two lots on Chrystie street, and was thirty-four feet three inches in depth, the ontside of the rear wall being eighteen inches easterly from the rear line of the two lots, and the outside of the front wall facing Chrystie street being on a line parallel with Chrystie street, and distant sixty-four feet three inches therefrom. That the cellars and vaults under said building were constructed for ale vaults, and three large ventilators were carried up and extended out from the front, and into the yard, nearly to a certain fence. That the building was three stories high, with windows in each story in front facing Chrystie street, and an entrance reached through an alley-way leading from Chrystie street. That the upper part of the building was used as a Jewish synagogue.
    That at the time of the erection of the building, and long before the lease was made by George A. Titus to William B. Miles and Abial Miles, there was a line of fence running parallel with Chrystie street, extending across the whole of said premises, except the alleyway, “which fence indicated and was the line of division between the curtilage or yard of the rear portion of said premises and the curtilage or yard of the front portion of said premises, and was so recognized.”
    That this fence was about five feet east of the front wall of the rear building, and the yard thus formed contained the aforesaid ventilators, and also a water-closet, which was so constructed on the line of the fence that one side was used for the front part of the premises and the other side by the rear.
    That on September 18, 1857, Abial Miles assigned his right to the last-mentioned lease to William B. Miles, which lease was duly recorded.
    That said William B. Miles died June 19, 1868, leaving a will by which he appointed his wife, Martha M. Miles, executrix, and the plaintiffs executors, which will was duly proved and the executors duly qualified.
    That when the leases expired in 1868 the lessors refused to renew or grant compensation for the buildings, wherefore an action was commenced in this court by the defendant herein, Eliza A. Titus, together with Martha M. Miles, William A. Miles and Charles H. Bailey against Anna J. D. Burr, Catharine E. L. Middlebrook, Charles H. Burr, George B. Burr, Mary E. Burr, John P. Jube, Caroline C. Hettinger and Charles H. Burr, Jr., in which all the plaintiffs jointly employed the same counsel, and Eliza. A. Titus verified the complaint. That this was a joint action by the plaintiffs. That the issues joined in said action were referred to John C. Bushnell, Esq., who reported January 3, 1870, that the value of the front buildings, Nos. 61 and 63 Chrystie street, owned by Eliza A. Titus, was $3,780, and of the rear buildings $16,822.40, &c. That certain schedules descriptive of the property were attached to the report and referred to therein. That judgment was given in favor of the plaintiffs in that action, and that renewal leases were executed accordingly. That the one to Eliza A. Titus, after describing the front of the two lots on Chrystie street,, continued as follows : ‘ ‘ Being the same premises described in Schedule F, annexed to the report” of the said referee, “with the appurtenances,” for twenty-one years, at a rent of $625. That the one to» the plaintiffs herein was “bounded westerly by the rear of lots 83, 85 and 851-2 Bowery, northerly by an alley-way three feet in width, leading from Chrystie street to the rear of said lots on the Bowery, easterly by premises now occupied by Eliza A. Titus, being the front part of lots 61 and 63 Chrystie street, and southerly by lot 59 Chrystie street, now occupied by the estate of William B. Miles, deceased, being the same premises now occupied by the estate of William B. Miles, and which are described in Schedule C, annexed to the report of” the said referee, &c., “with the appurtenances,” for twenty-one years, at a yearly rent of $625. That said leases were duly recorded in February and March, 1870.
    That at the time of the execution of these leases the aforesaid fence between the front and rear lots was standing, and the plaintiffs regarded the new lease as simply renewing and extending the term of their former ownership, occupancy, &c., and that they and their tenants continued so to occupy them as before, until March, 1875, when the defendant took down the front buildings, and began to dig out for new foundations, and claimed a right to close up the alley way. That plaintiffs thereupon began an action in the supreme court to restrain her from so doing, and obtained an injunction. That the issues in ■ that action were referred to William H. Leonard, Esq., to hear and determine the same. That the proceed ings in the action of Eliza A. Titus, and others, against Anna J. D. Burr, and others, and the proceedings therein, were introduced in evidence on the trial, and during the trial it was given out, on the part of the defendant, that the schedules had been improperly altered. That the referee found that plaintiffs were entitled to the right of way, as a way of necessity merely, and therefore he could change it, which he did, giving a way to and from' Chrystie street, four feet off from the northerly side of the premises leased to the defendant by Burr in 1870, and of a height not less than ten feet, with an injunction restraining defendant from interfering therewith, and judgment was entered accordingly, and both parties had appealed therefrom. That the referee also unnecessarily found that the schedules had been altered, but without the Consent of the parties to the action.
    That in December, 1875, the defendant and David H. King, and William H. Megson, acting in co-operation with her in her interest and behalf, began to dig out and exercise ownership over the yard or curtilage lying between the fence and the front of the rear building, and said that they intended to remove the ventilators and water-closet, and prevent the plaintiffs from the use of any of the land in front of the said building. That thereupon William A. Miles and Abial M. Hawkins, the lessees of the lower part of the building, commenced an action in the supreme court against the three persons aforesaid, to restrain them from so doing, and an injunction was obtained until the further order of the court, but the action has not yet been tried. That at about the same time an action was commenced in this court by the Jewish synagogue to restrain the same defendants, in which an injunction was also obtained by the plaintiffs. That this action had been tried before his Honor Judge Sedgwick, but no decision had been rendered.
    That the defendants in both of these actions claim that Eliza A. Titus owns as lessee all the land from the front on Chrystie street, to a line parallel therewith, and distant sixty-five feet and nine inches westerly therefrom, which includes the whole of said yard, and about eighteen inches of the front of the rear building, and alleged that the schedules before referred to gave the same to them, but that they had been changed. That a motion had been made in this court in the said action of Titus and others against Burr and others which resulted in a reference to Francis N. Bangs, Esq., to ascertain the truth as to the changes in the schedules, and that after hearing evidence he reported that certain changes had been made, but he could not determine when or by whom; and to his report he attached copies of said schedules as he found that they existed before the alleged changes were made. That an application was made to this court on behalf of said Eliza A. Titus to confirm said report and to adjudge as to such schedules and the changes therein. That upon the argument plaintiffs’ counsel urged, that if the schedules, as reported by Mr. Bangs, were to control the rights of these plaintiffs, gross injustice would be done, and asked to have the said judgment opened so far as to enable the forming of an issue therein between the plaintiffs and defendants herein, and to have that issue tried by the same referee. That the court thereupon suggested that in the motion then pending it could not make such an order, and that the only proper method of bringing the question before the court was by the plaintiffs instituting an action for that purpose, and that thereupon the court confirmed Mr. Bangs’ report, without prejudice to the rights of the plaintiffs therein, to apply to the court to determine the respective rights of the plaintiffs therein as between themselves to the said premises.
    That as there was no issue between the plaintiffs in that suit as to their respective rights, the action of the referee in preparing the schedules, &c., was extrajudicial and unauthorized.
    That the plaintiffs herein did not discover any alteration, until the defendant raised the question. That if the schedules as claimed and interpreted by the defendant are to control, the plaintiff’s premises will be rendered much less valuable than they now are, if they be not rendered entirely worthless. That the schedules, as claimed by defendant, did not correctly represent the ownership of said premises between the plaintiffs and defendant, and constituted an apparent cloud upon the title of the plaintiffs. That if any alterations were made in the schedules, they were not made with the knowledge, consent, procurement, or privity of the plaintiffs.
    The defendant demurred to the complaint on the ground that' it appeared on the face of the complaint:
    
      —I. That there was a defect of parties defendant, that the defendants named in the suit of William A. Miles and Charles H. Bailey, as executors, &c., against Anna J. D. Burr, and others, whose names are set forth in the complaint herein, should have been made parties defendant.
    II. That the complaint did not state facts sufficient to constitute a cause of action.
    
      Jacob F. Miller (Miller & Van Volkenburgh), for demurrer.
    I. This seems to be a bill of review, to review the judgment in the case of Eliza A. Titus, and others, against Anna D. Burr, and others. The relief sought can only be had by appeal from the judgment, the time for which has long since passed. Does a bill of review lie under the Code? See sections 268 and 323. The case of Wright v. Miller (1 Sandf. Ch. 103, and 8 N. Y. 9) arose before the Code.
    II. If a bill of review will lie in any case, this is not one of them (2 Barb. Ch. 91; Story’s Eq. Pl. § 404; 2 Daniels Pr. [3 Am. Ed.] 1576 and 1630, note 4; Moore v. Moore, 2 Ves. Sr. 596 ; Pendleton v. Fay, 3 Paige, 204; Elliott v. Balcom, 11 Gray, 268; Dexter v. Arnold, 5 Mason, 303 ; Whiting v. Bank of U. S., 13 Peters, 6 ; Wiser v. Blackley, 2 Johns. Ch. 488; Triplett v. Wilson, 6 Cal. 47 ; Burr v. Poang, 3 Desau. 596; Diaz v. Merle, 4 Paige, 259; Willan v. Willan, 16 Ves. 87; Livingston v. Hubbs, 3 Johns. Ch. 124; Hammersly v. Lambert, 2 Id. 124).
    III. All the parties to the original bill should be made parties to the bill of review, and such a bill cannot be filed without discovery of new matter, or by special leave of the court first obtained upon petition and security given (2 Barb. Ch. 94 ; Story's Eq. Pl. § 335 ; Webb v. Pell, 1 Paige, 564).
    IV. A bill taken by consent cannot be set aside by a bill of review, or one of that nature (2 Daniel’s Ch. Pr. 1575; Webb v. Webb, 3 Swanst. 658 ; Lansing v. Albany Ins. Co., Hopk. 182).
    V. The bill cannot be maintained where the propriety .of the decree is questioned; and, if it is filed without special leave first had, may be demurred to for irregularity; and if any person not a party to the original suit has become interested in the subject matter, he must be made a party to the bill of review (2 Daniels Ch. Pr. 1575, 1576, 1579, 1580; Webb v. Webb and Lansing v. Albany Ins. Co., supra; Perry v. Phillips, 17 Ves. 173, 176; Mellish v. Williams, 1 Verm. 166; Whiting v. Bank of U. S., supra; Story’s Eq. Pl. § 420; Dexter v. Arnold, supra).
    
    VI. The complaint does not state facts sufficient to constitute a cause of action. No fraud in obtaining the decree in Titus v. Burr, or mutual mistake, or any other reason which would render it void, is alleged. The decree has been acted upon. Leases have been made under it. The Miles executors were not entitled to a new lease of any part of the land, but the defendant alone. The instruments from Mary Luff to George H. Titus, and from him to Wm. B. and Abial Miles, were not assignments but under-leases (Taylor’s Landlord and Tenant, 14, 426; Davis v. Morris, 36 N. Y. 575; Post v. Kearney, 2 Id. 396; Piggot v. Mason, 1 Paige, 414; Van Rensselaer v. Gallup, 5 Den. 460 ; Collins v. Hasbrouck, 56 N. Y. 157). Even if the complaint calls them equitable assignments, the demurrer does not admit it, for it is only a conclusion of law (Groesbeck v. Dunscomb, 41 How. Pr. 302; Chitty on Pl. 217). No one is estopped, from denying conclusions of law; estoppels apply to conclusions of facts (Brewster v. Striker, 2 N. Y. 19; Striker v. Mott, 28 Id. 82). Judgments must be supported if possible without violating the rules of law; hence it will be presumed in support thereof that a fact necessary to its support was found, even if not stated by a court or referee (Cooper v. Bean, 5 Lans. 319; Grant v. Morse, 22 N. Y. 323; Baker v. Mayor, N. Y. Weekly Dig. Nov. 6, 1876; McDonald v. Christie, 42 Barb. 36, 39; Paige v. Fazackerly, 36 Id. 392). Pacts assumed upon the trial as existing, will be regarded on appeal as admitted (Cooper v. Bean, 5 Lans. 322; Booth v. Bunce, 31 N. Y. 250). The general conclusion of the referee is to be construed as involving a conclusion upon all material questions, although such a finding is not expressed in terms (22 N. Y. 323). The referee had a right to decide the questions (Code, § 274; Story's Eq. Jur. § 28 ; N. Y. Weekly Dig. Sept. 11, 1876). The judgment in Titus v. Burr is conclusive, not only to all that was adjudicated in that case, but also as to all that might have been (Clemens v. Clemens, 37 N. Y. 74 ; Harris v. Harris, 36 Barb. 88). The descriptions in the schedules are unambiguous and conclusive, and parol testimony cannot be given to vary or contradict them. As to the correct interpretation of the descriptions therein, and as to the controlling effect of the particular description, see the following cases: Barton v. Dawes, 10 Com. Bench R. 261-265; Llewellyn v. Earl of Jersey, 11 Mees. & Wels. 182 ; Doe v. Galloway, 5 Barn. & Adol. 51; Doe v. Hubbard, 15 Adol. & El. 236; Stephens on Evid. [Am. Ed.] 107; 2 Washb. on Real Prop. 672; Griffiths v. Penson, 1 Excheq. R. [Hurlst. & Colton] 862; Maitland v. Mackinnon, Id. 607 ; Roe v. Vernon, 5 East, 51 ; Wood v. Rowcliffe, 6 Id. 407; Barton v. Dawes, 19 J. C. B. 302 ; Jackson r. Marsh, 6 Cow. 283 ; Jackson v. Clark, 7 Johns. 223 ; Jackson v. Moore, 6 Cow. 717; Thatcher v. Howland, 2 Met. 241; Bosworth v. Sturtevant, 2 Cush. 392 ; Parks v. Loomis, 6 Gray, 467. The fence is not mentioned even in the description, and is not a monument, mete or bound, and furnishes no application of the rule that metes and bounds control distances (Sawyer v. Kendall, 10 Cush. 246; Melvin v. Proprietors of Locks, 5 Met. 15, 28; Whiting n. Dewey, 15 Pick. 43). The plea'of possession will not avail the plaintiffs against a deed or lease. Twenty years adverse possession is necessary. Indeed a lease will be presumed in favor of the person having the record title (2 R. S. 294; Code, § 86 ; Jackson v. Lunn, 3 Johns. Cas. 109; Jackson v. Parker, Id. 124; Jackson v. Sharp, 9 Johns. 163 Jackson v. Waters, 12 Id. 365; Jackson v. Thomas, 16 Id. 293; Bedell v. Shaw, 59 N. Y. 50 ; Churchill v. Onderdonk, Id. 138 ; Wheeler v. Clark, 58 N. Y. 267).
    
      Q. McAdam, opposed.
    
    I. There is no defect of parties defendant. No relief is asked against any one other than Eliza A. Titus. The action with respect to the judgment, &c., in Titus v. Burr, is without prejudice to the rights of any other parties to said judgment. Plaintiff has no controversy with the others mentioned in the demurrer. The demurrer is not well taken under sections 118 and 119 of the Code (Hillman v. Hillman, 14 How. Pr. 456, 460 ; Newbould v. Warrin, 14 Abb. Pr. 80; Wooster v. Chamberlain, 28 Barb. 602).
    II. The complaint states facts sufficient to constitute a cause of action, in that it seeks to have remedied an inadvertent wrong in the action of the referee in Titus -y. Burr, by the schedules attached to his report. There was no issue, evidence, representation, or appearance, in that action to warrant it, and the apparent, although not real adjudication on the point, should not have any force in determining the rights of the parties to this action. These schedules may be regarded as a cloud on plaintiff’s title, and, if upheld, great injustice will be done to them. The case presented is not an illegal ruling from which an appeal can be taken, but an irregularity in an extra-judicial action. The action is sustained, by McKay v. Simpson (3 Sup’m. Ct. [T. & C.] 65). See also McCall v. McCall (54 N. Y. 541).
   Sedgwick, J.

I do not see in the averments of the complaint any cause of action.

The complaint takes the position that the issues in Miles v. Burr did not require an adjudication as to the several rights of the parties to this action, that those several rights were never submitted to the referee, and that what he did in the matter was unauthorized and invalid as an adjudication. If that be so, the plaintiff is not injured by the result of that action, as such, for it forms no estoppel (Stevens v. Hall, 2 Robt. 624; Campbell v. Consalus, 25 N. Y. 613 ; People ex rel. Reilly v. Johnson, 28 Id. 63; Sweet v. Tuttle, 14 Id. 465), and there can be no justification for taking hold of that action, reforming its pleadings, and calling upon the same referee, or another, to adjudicate the issues of substantially a new action.

The implication of the complaint is very strong, perhaps incontrovertible, that the action of the referee was upon the request of the parties. They voluntarily took the leases, knowing the contents. At least, his action was the equivalent of a partition of the undivided rights of the plaintiffs in the decree. Whatever they voluntarily and knowingly agreed to, must stand. If there were mistake, misrepresentation, surprise, or anything of that nature, which gives them a right to set aside and modify a voluntary arrangement, no adjudication stands in the way of the plaintiff’s obtaining his rights; but no such mistake is alleged in this complaint.

If the order made upon Mr. Bangs’ report, even with the reservation of the plaintiff’s right to bring an action, injured them, their sole remedy, and a sufficient one, was to appeal. The order did not, however, reserve the right to bring an action in this particular form.

The only wrong that plaintiff complains of, is that the schedules, which were referred to in the description of the leases, are ambiguous on their face, or have been made so by the last order, or incorrectly describe, first or last, the rights intended to be conveyed by the leases. Otherwise, there is no doubt as to the extent of the land demised, as plaintiff claims. If that be so, the plaintiff must state the facts which constitute the wrong. In what state were the schedules when the leases were made ? Did they then conform to the intentions of the parties ? If they did, what facts are there which call for changing them against the intentions of the parties ? If they did not, how was it meant the diagram should be ? In such case, in what way and to what extent, is the defendant liable to an action ? I cannot find in the complaint enough to show what the plaintiff’s rights are, even if an action of the kind would lie, as to which there has been no argument.

I am of opinion that there should be judgment for defendant, on the demurrer, with costs.  