
    Jehiel Hymes, Resp’t, v. Mynderse Van Cleef, Adm’r with the Will Annexed of Joseph Esty, Deceased, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Deed—Covenants—Admissions by record.
    In an action for breach of covenant of quiet enjoyment contained in a deed by reason of the fact that a portion of the premises conveyed was a part of a public street, the deed given by defendant’s intestate and the map referred to therein were introduced in evidence to show that fact. Defendant claimed that the map showed that the portion of the premises where the street exists was not included in the lot in question. The court offered to submit that question to the jury if defendant requested it, but there was nothing to show that defendant so requested. Held, that the fact that the street occupied a portion of the premises described in plaintiff’s deed must be regarded as practically admitted by defendant.
    
      2. Same—Evidence—Declarations.
    Evidence of declarations of intestate made while in possession of the premises and after his conveyance thereof, to the effect that they extended across the street, is admissible in such a case.
    3. Same—Damages.
    The measure of damages in such actions is such part of the original purchase price as bears the" same ratio to the whole consideration that the value of the land to which the title failed bears to the value of the whole premises.
    4. ApReal—Notice.
    In his notice of appeal from a judgment, the appellant stated that he intended to bring up for review, upon such appeal, the order granted subsequent to the judgment denying a motion for a new trial. Held, that although appellant’s practice was irregular, the statement was sufficient to constitute an appeal from said order.
    Appeal from a judgment in favor of the plaintiff for $812.30 damages, and $1,141.20 costs, entered March 31, 1891, in Tompkins county, on the verdict of a jury.
    The appellant’s notice of appeal contained the following statement : “And the appellant intends to bring up for review upon such appeal the order dated the 24th day of July, 1891, denying the defendant’s motion for a new trial.” The respondent noticed a motion for the term at which this case was argued, to have that portion of the notice of appeal stricken out The motion was argued with the appeal
    
      Almy & Bouton, for app’lt; F. E. Tibbetts, for resp’t.
   Martin, J.

—This action was to recover damages for the breach of a covenant contained in a deed of certain premises situate in the city of Ithaca, 1ST. Y., given by the appellant’s testator to the respondent’s grantor April 30, 1869. The covenant was for quiet enjoyment In an action which was subsequently commenced against the plaintiff by the then village of Ithaca, it was held that a portion of the land claimed by the respondent under such deed was in and constituted a part of one of the public streets or highways of that village, and the respondent was perpetually restrained from interfering with its use and enjoyment as such.

The alleged breach of covenant was the eviction of the plaintiff by the village of Ithaca from the portion of the lot which had been appropriated, before conveyance, as a part of a public street.

The case has been three times tried. Upon the first trial the plaintiff had a verdict. The defendant thereupon moved for a new trial, which was granted. The plaintiff then appealed to the general term, and the order granting a new trial was affirmed upon the ground that the fact that a part of the land conveyed was at the time a part of a public highway openly used was not a breach of the covenant

Upon the second trial the plaintiff was nonsuited, which was affirmed by the general term. From the judgment entered on this decision of the general term an appeal was taken to the court of appeals, where it was held that the fact that a part of the land conveyed with a covenant of warranty was at the time of the conveyance a highway, and used as such, was not a breach of warranty, but that this rule does not apply where the purchaser has no notice of the existence of such highway and there was no indication of its existence, and the judgment was reversed on the ground that it was a question of fact whether the street was open and visible or its existence known to the purchaser when the premises were conveyed by the defendant’s testator.

Upon the last trial substantially the only question litigated was, whether the plaintiff or his grantor knew of, or the situation of . the premises was such at the time as to indicate, the existence of a street across the premises. Much evidence was given upon this question. That of the plaintiff tended to show that the existence of the street was unknown to him and not indicated by the situation of the premises; that of the defendant was to the contrary. The question was fairly submitted to the jury, and it found for the plaintiff. The verdict was justified by the evidence.

On the trial the plaintiff introduced in evidence the deed from the defendant’s testator to one Todd, the plaintiff’s grantor, and a deed from Todd to the plaintiff, together with the map referred to in the description of the premises contained in those deeds. The plaintiff testified that he had had a survey of the premises made, starting from a center stone at the comer of Mill and Tioga streets; that he measured from the corner between his premises and those of Wilson sixty-six feet, and it ran over the bank into the creek three feet We do not find that this evidence is seriously contradicted. The defendant’s only claim was that the map indicated that, the portion of the premises where the street exists was not included in the lot in question. The court offered to submit that question to the jury if the defendant desired, but we find nothing in the appeal book to indicate that the defendant made any request or expressed any desire to have that question thus submitted. We think the fact, that the street occupied a portion of the premises described in the plaintiff’s deed, must • be regarded as practically admitted, in view of the course pursued by the defendant at the trial.

The appellant contends that the court erred in admitting the declarations of his testator. The plaintiff introduced the evidence of Growen Todd taken on a former trial wherein he, among other things, testified: “ I proposed to Mr. Bsty to buy the lot and went with him and we looked it over; he gave me a statement of the size; he said it was sixty-six feet front; I don’t recollect the depth ; to get the whole sixty-six feet it carried the north corner some few feet into the creek; I could not say how many feet; we could not establish the corner; Mr. Bsty did not know where the corner was and we did not measure it; he said it went over into the creek; he could not tell me any distance it went into the creek.”

This evidence was objected to as incompetent, irrelevant and immaterial, that parol proof was incompetent to extend or vary the description in the deed and that the preliminary negotiations were merged in the deed. These objections were overruled, and the evidence was admitted for the purpose of showing whether the person who negotiated for the purchase of the premises was informed as to the existence of the highway.

The plaintiff was permitted to prove other declarations of the testator, while in possession of the premises, and also subsequent to his conveyance of them, to the effect that the lot in question extended across the street and into the creek.

This evidence was objected to as incompetent, immaterial and irrelevant. The objections were overruled and the defendant excepted. We find no error in these rulings that would justify an interference with the judgment. The admissions proved were the admissions of the defendant's testator, both while in the possession of the premises and subsequent to the conveyance to the plaintiff’s grantor. The declarations of a person in possession of lands are competent evidence against himself and all persons claiming under him for the purpose of showing the character of his possession and by what title he claims. Pitts v. Wilder, 1 N. Y., 525; Chadwick v. Former, 69 id., 404; Spaulding v. Hollenbeck, 35 id., 204; Abeel v. Van Gelder, 36 id., 513. The declarations of the testator made subsequent to his conveyance were against his interest and therefore admissible against his personal representative. Lucky v. Odell, 46 Supr. Cf. (14 J. & S.), 548 ; Howell v. Taylor, 11 Hun, 214. Indeed, by reason of the privity by representation which existed between the defendant and his testator, his declarations were admissible in the same manner as they would have been against the testator. 1 Green! on Ev., § 189.

, The plaintiff was allowed to prove the value at the time of the eviction of the corner of his lot taken, as compared with the whole premises, assuming them to be worth $1,650 at that tima This was objected to as “ incompetent, irrelevant, immaterial and without foundation in the proof of this action.” The objections were overruled and the defendant excepted. It is quite manifest from the rulings and charge that the court adopted and submitted the true rule of damages to the jury. The measure of damages in actions of this description is such a part of the original purchase price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises. Hunt v. Raplee, 44 Hun, 149, 155; 7 N. Y. State Rep., 783. It seems to have been assumed on the trial that the consideration for the purchase of the whole premises was $1,650, and proof was allowed as to the value of the land taken, assuming the value of the whole to have been that sum. The court charged the jury that if it found that there was less of the land taken than was asserted by the plaintiff, it would then take such proportion of the value as it thought proper and deduct from the amount The value of the land as found by the jury seems to have, been $174, while the proof of the value of the whole corner of the plaintiff’s lot was $250. We find no error in this which would justify a reversal. We think the judgment should be affirmed.

This leaves for consideration the respondent’s motion to strike from the notice of appeal the words, “ and appellant intends to bring up for review upon such appeal the order dated the 24th day of January, 1891, denying the defendant's motion for a new trial” It is not apparent to us how the determination of this motion in the respondent’s favor would improve his condition on this appeal, as all the exceptions argued by the appellant were brought up by his appeal from the judgment

The correctness of the appellant’s practice is more than doubtful. The Code of Civil Procedure, § 1300, provides the manner of taking an appeal from a judgment dr order, except in cases of an interlocutory judgment, or intermediate order. ■ When the appeal is from an order other than an intermediate one, there should be a written notice of appeal to the effect that the appellant appeals from the order or some part thereof. The notice of appeal in this case is not in strict conformance with the provisions of § 1801, which relate only to an intermediate order. That the order denying the defendant’s motion for a new trial in this case was not an intermediate order, is quite manifest An intermediate order is one made between the commencement of • an action and the entry of the judgment from which the appeal is taken. Baylies on New Trials, 49.

This order was made long after the entry of the final judgment appealed from. Therefore the correct practice was to appeal from the order rather than to specify in the notice of an appeal from the judgment that the order would be reviewed as though an intermediate one. This case is clearly distinguishable from Brumfield v. Hill (28 N. Y. State Rep., 362), as in that case the motion was made on the minutes of the trial judge and before the entry of judgment. These considerations lead us to the conclusion that the plaintiff’s motion should be granted, or at least the appeal should be treated as an appeal from the judgment only, unless-the language employed in the notice of appeal can be treated as a notice of appeal from the order denying a new trial.

As we have already seen the requisites of a notice of appeal are, that it shall contain a written notice to the effect that the apf ellant appeals from the judgment or order or some part thereof. n this notice the appellant states that he intends to review on the appeal the order dated January 24, 1891, denying the defendant’s motion for a new trial. While the practice of the appellant in this case is not to be encouraged and is not strictly correct,- still, we are disposed to hold that the statement in the notice of appeal was sufficient to constitute an appeal from the order sought to be reviewed. It follows that the plaintiff’s motion should be denied ; but in view of the irregularity of the notice no costs should be allowed.

Motion denied, without costs.

Judgment and order affirmed, with costs to the respondent.

Hármit, P. J., and Merwin, J., concur.  