offered to pay the consideration for the property in legal-tender notes, and demanded a deed. The legal-tender notes were then worth, in gold, something over one-half of their nominal value. Tayloe refused to convey, saying that he understood the purchase price was to be paid in gold, and that he would accept gold, but would not accept notes. Willard then brought his action to enforce a specific performance of the contract. The complaint was dismissed at the trial, and Willard appealed to the supreme court of the United States. The court laid down the rule that the discretionary power of the court in ordering a specific performance of the contract will not be exercised, although the contract may have been originally fair and equal in its terms, if its enforcement, from subsequent events, or even from collateral circumstances, would work hardship or injustice to either of the parties. Acting upon that rule in that case, the court refused a judgment for specific performance unless the plaintiff would pay the purchase price of the premises in gold, and adjudged that he might have specific performance upon his stipulating to pay in that way. The court of appeals in this state have laid down the same rule. In the case of Trustees v. Lynch, 70 N. Y. 440, the plaintiff had brought his action to compel the defendants specifically to perform a contract not to use certain premises for business purposes. The complaint had been dismissed in the superior court, and the judgment had been affirmed by the general term, and an appeal was taken to the court of appeals. Judge Allen, in delivering the opinion of the court, lays stress upon the fact (page 446) that it was not shown that there had been any change in the character of the locality and surrounding of the premises, or the occupation of the contiguous property, or the business in the vicinity, which would render it inequitable to compel a specific performance of the agreement. Upon the new trial which was ordered by the court of appeals, the defendants, acting upon the broad hint which was contained in Judge Allen's opinion, showed that there had been such a change in the character of the neighborhood as to defeat the object of the agreement, and to render it inequitable to compel the specific performance, and thereupon the complaint was dismissed again. In the decision affirming this last judgment, the court of appeals, approving the case of Willard v. Tayloe, 8 Wall. 557, lay down the rule that, though the contract was fair and just when made, the interference of the court should be denied if subsequent events have made performance by the defendant so onerous that its enforcement would impose great hardship upon him, and cause little or no benefit to the plaintiff. Trustees v. Thacher, 87

N. Y. 311, 317. This case must be deemed to settle the rule in this state, that a specific performance of a contract will be denied where it has become inequitable to order its enforcement by reason of subsequent change in the conditions, as well as where it was originally unfair and oppressive.

There can be no doubt, I think, in this case, that it would be exceedingly oppressive upon the defendant to be compelled to perform this contract to open this street at the present time. The expense of it is large, almost three times the amount that was paid by the

plaintiff for his land. It is certain that the defendant cannot, for many years at least, receive any profit from the sales of lots along this street, which she had expected to sell at a profit immediately on the street being opened. The opening of the street further back than the rear of his lot would be of comparatively small importance to the plaintiff. Certainly, any injury which he would suffer by not opening it could be very easily compensated for in damages. For this reason, I think the case is one where specific performance should be denied. But the complaint should not, I think, be dismissed. It is well settled now, in this state, that in actions of this kind, where the plaintiff fails to show himself entitled to equitable relief, the court may retain the action for the purpose of giving him compensation by way of damages. It was always within the power of the court to give damages instead of specific performance, where the case was such that that course was proper. It would have been competent in this case for the court at the special term to have taken evidence upon the question of damages, and awarded the damages if no specific performance should have been given. But a better way, I think, is to deny the application for relief by way of specific performance, and to direct the question of damages to be tried by a jury at the circuit. This course was approved by the court of appeals, and is the one which I think should be followed in this case. Sternberger v. McGovern, 56 N. Y. 12. The contract between the parties is entire,-simply to open this street from one end to the other, and for that reason the defendant cannot, I think, be required to open a part of the street, and to pay damages for a failure to perform the rest of her contract. Martin v. Colby,

42 Hun, 1. But the defendant Brown in this case offered, upon the trial, to stipulate that specific performance might be adjudged of this contract so far as to require her to open the street from Mt. Hope avenue to the rear of the plaintiff's premises, thereby giving him the right of way into the rear of his land, and that the damages which he suffered, if any, by reason of the failure to open the street clear through to South avenue, might be assessed by a jury. While I would not feel at liberty, I think, to order such a judgment except upon the stipulation of the parties, yet I have no doubt that a judgment to that effect would come nearer than any other to working out a right result. For that reason, as the defendant is willing that such judgment should be rendered against her, the findings will provide for such a judgment if the plaintiff sees fit to accept it. If he does not, the only judgment can be that the case be sent to a jury for trial upon the question of damages. Judgment accordingly.

(75 Hun, 309.)

HELMER v. MINOT.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) · LIMITATION OF ACTIONS-ABSENCE FROM STATE.

In order to avoid the effect of Code Civil Proc. § 401, providing that if, when a cause of action accrues against a person, he is without the

state, the action may be commenced within the time limited therefor after his return, the burden is on him to show his presence in the state after the cause of action arose for a sufficient time to bar it.

Appeal from circuit court, Monroe county.

Action by Josiah H. Helmer against Bartlett Minot.

From a

judgment in favor of plaintiff after a trial before the court without a jury, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.

Delbert A. Adams, for appellant.

T. S. Dean, for respondent.

LEWIS, J. The plaintiff, at the request of the defendant, and for his accommodation, became a surety upon the promissory note of the defendant, dated November 21, 1868, due in one year from date. The defendant failed to pay the note at maturity, and the plaintiff was compelled to, and did, pay the amount of the note to the holder. This action was commenced on the 31st day of October, 1891, to recover the amount paid, with interest. The defense relied upon is the statute of limitations. The evidence tended to show that the defendant was at the time of making the note, and up till the spring of 1869, a resident of the city of Lockport, and was there engaged in business; that he closed his business during the spring or summer of that year, and shipped his goods to the state of Illinois, and left the city of Lockport, stating that he intended to remove to the state of Illinois. He thereafter corresponded with a resident of the city of Lockport, dating his letters from Bloomington, Ill. Up to the time of leaving Lockport, he had been seen in that city from day to day. After his removal, he was not seen in Lockport, until about the year 1872, when he returned there with the dead body of his wife, for burial. He then stated that he was residing in Dakota, that he had taken up some govern ment land there, and that he intended to return to Dakota in about one week. There was proof tending to show that he was seen in this state some time thereafter, but when did not appear. He returned again into this state in the year 1891 to attend his father's funeral, at which time this action was commenced. He then stated that he had come from the state of Washington. The defendant's brother testified that he was a resident of Clarkson, in this state, and that he did not know of the defendant residing in this state since he left it, in 1869. These facts having been established by the plaintiff, it made a prima facie case of absence of the defendant from the state, and put the burden of proof upon him to show his presence in the state after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim; that is, for six years. Section 401 of the Code of Civil Procedure provides that "if, when the cause of action accrues against a person, he is without the state, the action may be commenced within the time limited therefor, after his return into the state." Bank v. Seawell, 18 Ala. 619;. Nixon v. Palmer, 10 Barb. 178; Mayer v. Friedman, 7 Hun, 218. The trial court found as facts, upon evidence sustaining the find

ings, that, before the maturity of the note, defendant, who prior thereto had been a resident of the city of Lockport, in this state, left said state, and went to the state of Illinois, where he took up his residence, and that ever since that time the defendant has continued to reside without the state, and has remained continuously without the state, except upon two or three occasions, when he was temporarily here, as stated above, and held that the plaintiff was entitled to judgment against defendant for the amount due upon the note. We find no reason for disturbing the judgment. It should be affirmed. All concur.

(75 Hun, 308.)

WELSH v. FALLIHEE.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) COSTS-WHEN TITLE TO REAL ESTATE INVOLVED.

In an action for assault and battery, an answer which states that, immediately before the alleged assault, plaintiff entered on defendant's close, and stood in the doorway of an ice house in which defendant was putting in ice, and that defendant removed him from the door, using no unnecessary force, does not put the title to real estate in issue, (Code Civil Proc. § 3228, subd. 1,) so as to entitle plaintiff to costs on final judgment in his favor.

Appeal from special term, Monroe county.

Action by John Welsh against Edward Fallihee for assault and battery. From an order denying plaintiff's motion for a retaxation of costs, plaintiff appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

D. Merville Page, for appellant.
Dalson & Dalson, for respondent.

LEWIS, J. The action was for assault and battery. Defend ant's answer was, in substance, that plaintiff, immediately prior to the alleged assault, entered upon defendant's close and property, on which was an ice house, into which the defendant was at the time engaged in putting ice, and stood in the doorway of the house, and obstructed the defendant's business, and that defendant removed plaintiff away from the door, using no unnecessary force, etc. There was no certificate that any question of title to real estate arose upon the trial. The plaintiff had a verdict for $20 for his damages, and claimed a full bill of costs, upon the theory that the title to real estate was in question.1 The clerk taxed $20 costs, and the special term denied plaintiff's motion for retaxation.

We think the special term was right. The allegations of the an

'Code Civil Proc. § 3228, provides as follows: "The plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in either of the following actions: (1) An action, triable by a jury, to recover real property, or an interest in real property; or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial."

v.27 N.Y.s.no.1-6

swer amounted simply to the claim of the right of possession by defendant. It did not raise an issue of title to real estate. The case of Langdon v. Guy, 91 N. Y. 660, was a much stronger case for a full bill of costs than this, and yet the court of appeals held against plaintiff's contention. The order appealed from should be affirmed, with $10 costs and disbursements. All concur.

(6 Misc. Rep. 236.)

BURCHELL v. GREEN et al.

December, 1893.)

(Supreme Court, Special Term, St. Lawrence County. EXECUTION-PROPERTY SUBJECT TO-INTEREST under CONDITIONAL Sale.

A conditional sale, by which the goods are to remain the property of the seller until paid for, does not give the purchaser a leviable interest in the goods before payment of the price. Hull v. Carnley, 11 N. Y. 501, distinguished.

Replevin by B. E. Burchell against J. E. Green and others. Plaintiff demurs to an affirmative defense set up in the answer. Sus tained.

S. S. Trowbridge, for plaintiff.
L. J. Dorwin, for defendant.

RUSSELL, J. The legal question presented here arises upon a demurrer on the merits to the affirmative defense of the answer. The action is replevin, and the defense is justification under a judg ment and execution. By the pleadings the ownership of the plaintiff, of the title to the personal property, is admitted. But the defendants claim in their answer that the execution debtor, Green, had a leviable interest in the personalty by the part payment towards the purchase price of $57, and by a written agreement, of which the following is a copy:

"$570.

Antwerp, N. Y., April 20th, 1893.

"Two months after date, I promise to pay to the order of B. E. Burchell, at the City National Bank, Watertown, N. Y., $750, for part purchase price of desks, chairs, tables, and typewriters in College of Commerce, Watertown, N. Y., which shall be and remain the property of the said B. E. Burchell until paid for in full. Value received, with use. J. E. Green, 2d.”

Beyond doubt, the title remained in the plaintiff, and this title could not be sold on an execution against the judgment debtor, the note having been duly filed. Herring v. Hoppock, 15 N. Y. 409; Ballard v. Burgett, 40 N. Y. 315; Cole v. Mann, 62 N. Y. 1.

But the defendants claim that Green had a possessory interest, good until the note became due, which either was leviable upon under execution, or, if not, that replevin will not lie under the provision of the Code of Civil Procedure affecting the action of replevin, unless the plaintiff has a right to reduce the property to his possession at the time the action is brought. Code Civil Proc. § 1690, subd. 3. And on the first branch of their defense they cite Hull v. Carnley, 11 N. Y. 501. That case holds that a leviable interest exists where the mortgagor has, by definite agreement, a right to pos