
    BENSON a. CROMWELL.
    
      Supreme Court, First District; Generad Term,
    
    December, 1857.
    Vendor and Purchaser.—Jurisdiction of County Courts.— “Special Cases.”
    In an action for specific performance of an agreement for the exchange of lands, where the defendant demanded as affirmative relief, recession of the contract and damages, on the ground of a failure to perform on the plaintiff’s part,—Held, that the plaintiff having, before the commencement of the action, specified his objections to the defendant’s title, in writing, all of which were untenable, he could not avoid a recession of the contract, on the ground of a new objection raised after the action was brought, even though the objection was a sufficient one, it being such that the defendant might, perhaps, have obviated it by releases if it had been raised in time.
    The provisions of the Code conferring upon county courts jurisdiction, of actions for the foreclosure pf mortgages, are not unconstitutional. (Dissenting from Hall v. Nelson, 23 Barb., 88.)
    The case of Kundolf v. Thalheimer (2 Kern., 693), commented on, and explained as not being an authority to the contrary.
    What is the meaning of “special cases,” in section 16 of article 6 of the Constitution.
    Appeal from judgment entered upon the report of a referee, of dismissal of the complaint, and for damages against the plaintiff.
    The action was for specific performance. The complaint alleged that the parties had agreed to exchange certain parcels of real estate, setting out the agreement. By this agreement, it appeared that the defendant had covenanted that the property ■which he gave in the exchange was “ to be conveyed subject to mortgages not to exceed $4,000 on each house and lot, with interest from May 1, 1855, to be assumed by said Benson” (the plaintiff) “ as a ;part of the consideration.”
    The complaint also alleged readiness, on the plaintiff’s part, and that he made tender of a deed of the premises to be conveyed by him, and demanded a conveyance from the defendant of the premises which were to have been conveyed by the defendant, and that he “ offered to assume payment of the mortgages thereon, to the amount of $4,000 on each house, but defendant refused so to convey the same.” And the plaintiff demanded judgment for specific performance and damages.
    The answer admitted the contract, but denied all the other allegations of the complaint, and averred that the plaintiff had been at no time ready to perform the contract, but had refused to do so, although the defendant had been ready and willing at the time and place appointed, and had offered to fulfil. And the defendant demanded that the agreement be rescinded, and delivered up to be cancelled, and damages for non-performance.
    The plaintiff replied;' stating, among other things, that, after the making of the contract, the defendant discharged the mortgages which were on his premises, and substituted others having a shorter time to run.
    The case was tried before a referee, and judgment given for the defendant upon the report, for a recession of the contract, and for damages and costs to be paid by the plaintiff to the defendant. The plaintiff appealed.
    The main grounds relied upon on the appeal, and upon which the decision turns, were that certain judgments of foreclosure, through which the defendant’s title was deduced, were void, having been recovered in a county court; and that the plaintiff was not bound to. assume the payment of mortgages, other than those which were in existence at the time of the contract.
    
      A. Mann, Jr., for appellant.
    
      J. W. Gilbert, for respondent.
   By the Court.

Mitchell, J. The plaintiff agreed to exchange real estate—Cromwell to convey his, “ subject to* mortgages not to exceed $4,000 on each house and lot, with interest from Hay 1, 1855, to be assumed by Benson as part of the consideration money. There were mortgages then on C.’s property; before the time for the completion of the exchange, he removed those and substituted others.

When the time for the exchange of papers came, the counsel for Benson objected: that Benson should not assume these mortgages ; that they were made payable on the first of November; and that if he did, Cromwell would foreclose them the day after they became' due. Or, in the words of his own counsel, he told Hr. ,C. “ that Dr. B. was not bound to assume the payment of any mortgages which were not on the property,” meaning at the time of the contract. Dr. B. said his counsel advised him “ that he was not bound to assume any mortgages except” those on the property at the time of the contract, and that he “ had acted on that advice.” The contract did not describe mortgages then on the property as those to be assumed—nor any particular mortgages—but only specified the amount, and the time from which the interest was to run. The objection of the plaintiff was therefore bad, and put him in fault. The principal objection now-raised is, that Cromwell’s title was derived from a foreclosure in a county court..,

B.’s counsel, after examining C.’s title, stated the objections to it in writing, in eight different propositions: none of these object that no foreclosure could be in a county court, but they are taken up with special and minute objections to the proceeding in the suit, supposed to be irregular. This objection seems to have been raised only after this suit was brought; if presented in due time, it may well be that C. could have obviated it by releases. He was, at all events, entitled, to have notice of the objection before a suit was brought against him by a contracting party, who was in fault in assuming and insisting in an untenable position, materially affecting the contract.

This would be sufficient reason for that part of the judgment of the special term, which declares the contract to be rescinded and annulled, and directs the instrument to be delivered up to be cancelled. There is a decision in the second judicial district of this court, that, under the constitution, the county courts cannot foreclose a mortgage (Hall v. Nelson, 23 Barb., 88). We do not acquiesce in that decision ; but the decision in the Court of Appeals (Kundolf v. Thalheimer, 2 Kern., 593, reversing S. C., 17 Barb. 506) throws such doubt on a title thus derived, that a purchaser should not be required to take it. For this reason, so much of the judgment of the special term as gives damages, costs, and allowance to the defendant, should be reversed ; and neither party should have costs against 'the other.

It is proper briefly to state our views as to the constitution. The case in the Court of Appeals arose in an action for an assault and battery. Judges Gardiner and Hand each delivered written opinions, in which Judge Gardiner confines his understanding of the “ special cases” in which county courts may have original jurisdiction to special proceedings existing in 1846, and similar special proceedings. Judge Hand’s views are nearly the same ; but he cautiously remarks : “ Perhaps it may be different in equity, for the Legislature is authorized to confer upon the county judge equity jurisdiction in special cases.” This prevented him and the Court of Appeals from being committed to extend that decision to equity cases. Judges Denio, Johnson, Crippen, and Dean avoided the appearance of assent to the views of Judges Gardiner and Hand, by stating the grounds of their concurrence to be, “ that the statute imposing jurisdiction on county courts in actions of assault a/nd battery was unconstitutional.” Judges Buggies and Marvin took no part in the decision. In the case in the 2d district, Justice Emmet felt controlled by the decision in the Court of Appeals, although he does not hesitate to express his dissent from it, and shows strongly the danger of such a decision when the law had met the approbation of the profession, and many titles depended on its being sustained. Justice Brown dissented from his associates.

The reasoning in the Court of Appeals admits that “ cases” primarily means or includes causes. The section of the constitution referred to uses it in that sense. It says : “ The county court shall have such jurisdiction in cases arising in justices cowrts, and in special cases, as the Legislature may prescribe ; but shall have no original civil jurisdiction except in such special cases? The cases arising in-justice’s courts are causes— mostly common-law causes—and unless' “ cases” includes such causes, and not merely special proceedings, the Legislature can give no appellate jurisdiction to the county courts over the justices’ courts; and if the opinions in the case in the Court of Appeals are to be extended, that court must also pronounce any act giving an appeal to the county court from decisions of the justices’ courts unconstitutional, except in what was known as special proceedings in 1846. Section 10 of this article in like manner uses the word cases. “ The testimony in equity cases shall be taken in like manner as in cases at law.” The reasoning in that case also depends on the adoption of a meaning of the word “ special,” allowable only where precision of language is not required—namely, “ extraordinary.” “ Special” is contradistinguished from “ general” as “ species” is from “ genus.” This very article of the constitution makes this very distinction as applicable to this subject. Section 3 says : “ There shall be a supreme court, having general jurisdiction in law and equity.” General was here used as distinguished from special. This court was to possess a power in law and equity, as general as law and equity themselves are. There was to be no need of any specification of its powers by the Legislature, and it may be that it was intended that the Legislature should have no right to limit its powers. Having thus provided for a court with general jurisdiction, it was proper to provide for others with special jurisdiction, or jurisdiction in special cases. Using the term special, as contradistinguished from general “ cases,” was a more appropriate word than “ causes,” for it includes not only causes, but special proceedings, and is more commonly used as including equity as well as common-law actions, than the word “ causes” is. “ Cases in equity” is a more familiar phrase than “ causes in equity.” This would require the Legislature to specify the cases in which the county courts should have jurisdiction; and it may be that the four judges who concurred in the decision in the Court of Appeals, “ on the ground that the statute conferring jurisdiction on county courts in actions of assault and battery was unconstitutional,” so held because the Legislature did not “ specify the cases” in which the county courts should have jurisdiction; but gave it in general terms,—terms almost as general as to personal actions, as those in which the constitution confers the power on the Supreme Court, except by limiting the actions by the amount demanded, and the residence of the defendant. The terms are “ civil actions, in which the relief demanded is the recovery of a sum of money not exceeding $500, or the recovery of the possession of personal property not exceeding in value $500,” &c.

But the Legislature does distinctly specify the power to foreclose a mortgage, and sell the mortgaged premises, if they are situated within that county (Const., 80, 33). To this also may be added, that as the sale of mortgaged premises by advertisement had been a special proceeding in daily use before the year 1846, it did not make it less a special proceeding, within the meaning of the constitution, if the Legislature authorized the same thing to be done in the county court. The constitutional right to confer the power on the county court would be clear if the proceeding was to be then conducted in a summary way : it could not be lost by requiring the formalities of an action in the same proceeding.

The word special is also used in the same sense in the 9th section of this article, which speaks of “ the general and special terms of the Supreme Courtterms for special proceedings, such as were thus known in 1846, as distinguished from cases or causes, no one will say were intended. The 12th section in the converse sense speaks of the general election, of judges.” So when it is said in section 14, that the Legislature may confer equity jurisdiction in special cases upon the county judge, is it not plain that cases” here mean “ causes in equity” as plainly as “ equity cases” does in section 10 ? And then that “ special” must mean such as are “ specified)"* by the Legislature—not thrown in mass in general terms upon the court. “ Equity jurisdiction” properly applies only to formal actions in equity, and not to “ special proceedings.” Special proceedings in 1846 were seldom to be conducted by the chancellor or vice-chancellor : they were still less frequently, if ever, considered a part of the equity jurisdiction.  