New York County NyArchives Court.....Cornwell, Jacob Weeks Vs William Parke 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

JACOB WEEKS CORNWELL, Appellant, v. WILLIAM A. PARKE, ISAAC A. SINGER and JOHN 
DAYTON, Respondents.

Slander of title — notice given, at a sale in partition, of leasehold rights 
created by a receiver, in the premises sold thereat — duty of the claimant to 
announce such rights.

In an action, brought to recover damages for an alleged slander of title, it 
appeared that, pending an action brought for a partition of certain real estate 
in the city of New York, a receiver of the property was appointed and empowered, 
by order of the court, to lease the property for the term of three years, 
pursuant to which authority the receiver executed leases of certain portions of 
the property to the several defendants; that a judgment of sale was obtained 
about a year after the execution of such leases, whereupon, on notice to the 
parties in interest and to the present defendants, a motion was made and granted 
vacating the permission granted to the receiver to execute leases, and providing 
that the leases theretofore given should be abridged so that they should be 
invalid at the expiration of one year from the date of their execution, upon 
condition that the lessees should be protected in the damages caused by such 
abridgment thereof.

The property was advertised for sale, and on the day fixed the defendants 
appeared at the place of sale and stated that the premises were occupied by 
them, under leases thereof given by authority of the court, and gave notice 
that, as they were advised and verily believed, so long as they complied with 
the terms of the said leases given to them, they were entitled to the possession 
of the premises until the expiration of the term specified in the leases, and 
that nothing in such order abridging such terms would in any way operate to 
limit them.

It was claimed that the reading of this notice seriously affected the sale and 
deterred parties from bidding thereat.

Held, that, as it did not appear that any statement contained in such notice 
was, in any respect, false or untrue, that the action could not be maintained, 
and that the complaint was properly dismissed.

Semble, that if these defendants, being present at the sale, had allowed this 
property to be sold upon the assertion that they had no title or interest 
therein and had remained silent, they could not thereafter have asserted the 
existence of any rights therein.

Appeal by the plaintiff from a judgment, rendered at the New York Circuit, 
dismissing the complaint herein, which was entered in the office of the clerk of 
the county of New York on November 20, 1888.

Flamen B. Candler, for the appellant. 

E. M. Shepard, for the 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 the 
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 by him to 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 the 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 has 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 bona 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 claims. 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 respondent presents many considerations which he states were 
before the court, and which did not form part of the record. The difficulty 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.

Brady and Bartlett, JJ., concurred.

Judgment reduced to $608.34, and as so reduced affirmed, without costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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